The Negotiation Within: Outer Ideas on Inner Dialogues

figure-at-a-window3By Jonathan R. Cohen[1]

Where there are two Jews, there are three opinions.”

When I first read Bob Bordone’s e-mail describing the symposium on “The Negotiation Within,” I was of two minds. Part of me wanted to attend. The subject was intriguing, the panelists included many old friends, and a trip back to Cambridge would be enjoyable. Yet another part of me knew that I would not go. For roughly two decades I have observed the Jewish Sabbath, and this conference, like many others, was to meet on a Saturday. My inner dialogue was brief (or so I thought at first). A Shakespearean actor might have put it thus, “To go or not to go – that is the question.” My answer: not to go.

Life, however, can be more complex than first appears, and the next morning I awoke with a number of thoughts racing through my head – specifically, ideas I might have shared had I gone to the conference. What was I to do with them? In the language of negotiation, “going” and “not going” are, of course, positions. But what interests underlay those positions? Could those interests be addressed creatively through inventing options? Yes, it was possible to observe the Jewish Sabbath and it was possible to be involved with the conference, at least in part. Perhaps I could write some ideas and send them along. Perhaps I would later read what others wrote about “The Negotiation Within” and discuss their ideas with them on different occasions. My original inner dialogue had been built around positions, but after a night’s sleep it shifted to exploring interests and options.

I suspect that in many negotiations each party is of multiple minds. Sometimes such internal division is easy to observe, as when bilateral negotiations involve principals who are groups. When a union negotiates a labor contract with management, there may be different factions within the union, each vying for different ends. Part of the union may want this. Part of the union may want that. How is the union representative to proceed?

I suspect the conventional wisdom (if such exists) is that, before entering “across the table” negotiations with management, the union should try to resolve its internal conflicts.[2] Not only would it be difficult for the union’s representative to know what to say to management if such “behind the table” conflicts are not resolved, but if such fissures are not addressed proactively, the potential exists for the other side to exploit them. Perhaps management can gain a strategic edge through offering a deal that benefits both itself and one, but not both, of the union’s factions – divide and conquer, if you will. It is not uncommon for parents of small children to encounter a similar challenge. Before deciding upon a rule for a child, it is important for both parents to be “on the same page” lest the child play the forum-selection game of shopping for rules by seeking the more lenient parent.[3]

Now let us take up the more interesting case – for it is the more common case – of when such internal fissures are not readily observable. What happens when a party entering a negotiation, or more generally making a decision, is of two (or perhaps even three or four) minds? How then is that party to proceed?

Sometimes people approach such internal negotiations in a combative way, and an internal battle of the wills ensues over which side will triumph. One might think by analogy of the famous problem of Ulysses and the Sirens, or, more generally, the “intimate contest for self-command” as Thomas Schelling put it.[4] When two parts of ourselves are in conflict with one another (in Ulysses’ case, because his current self fears that his future self will be seduced by the sound of the Sirens and thus opts to bind himself to his ship’s mast to prevent his future self from departing), the question becomes which part will prevail in the battle over what to do. Think of the dieter’s dilemma when confronted by a bowl of chocolates. “Oh, they look so good … I want to eat some,” says the voice of indulgence. “Don’t touch them,” barks the voice of restraint. The inner discourse, in other words, is built around positions.

My suggestion here is that we take some of the qualities and ideas we have learned from external negotiations and apply them to our inner dialogues. “Why do you want to eat the chocolates?” the voice of restraint might ask. “Because I’m bored,” “because I’m upset,” and “because I’m hungry” are all possible answers. Each of these answers reveals a different interest and points to different possible solutions (e.g., finding a fun activity in which to engage, finding a different way to soothe oneself, or finding a healthier food to eat). As with so many of our external negotiations, the critical question becomes whether our inner dialogues will be problem-solving ones or positional ones.

Could it be that, when all is said and done, how we talk and negotiate with other people and how we talk and negotiate within ourselves are deeply connected?I do not mean to suggest that this connection is simple.If the data point I know best – me! – is any guide, one’s outer negotiation style and one’s inner negotiation style can be quite different.The Myers-Briggs introvert that I am, it is not uncommon for my inner negotiations to be very long, but my outer negotiations brief.Nevertheless, I suspect that often there is much consistency to how we do what we do, so that how a person conducts inner conversations and how he or she approaches outer conversations will be similar.Am I optimistic that solutions can be found to difficult situations?Am I capable of listening to seemingly-incompatible views and probing for what is valid within each?Do I express myself in measured language or am I prone to hyperbole?If a person has an attitude like optimism or habits such as open-minded listening and measured speaking in one realm, I suspect it is much more likely, though not inevitable, that he or she will have them in the other realm, too.

Suppose the hypothesis is true that there is a significant connection between how we talk and negotiate within ourselves and how we talk and negotiate with others. If so, a number of lessons follow for those who teach and practice negotiation. Let me mention two. First, getting people to think about their internal negotiations may be extremely valuable in helping them to change their approach to external negotiations. Books such as Difficult Conversations (with its emphasis on examining the impact of internal identity conflicts on external negotiations) and research on topics such as the role of emotions in negotiation and mindfulness in dispute resolution have already started us down this path.[5] It is a path we should pursue further. Second, as we teach people to approach their outer negotiations in new ways, we may also indirectly be teaching them to approach their inner negotiations in new ways. Internal transformation, is not, of course, the primary aim of most negotiation courses. However, if internal and external negotiation styles are deeply linked, then as we influence the latter, we may also be influencing the former. How distinct, after all, is the internal from the external? Viewed from afar, the line between them is only skin deep.

For more on the 2010 HNLR Symposium: The Negotiation Within, click here.


1 Professor of Law, University of Florida, Levin College of Law. The author can be reached at cohenjr@law.ufl.edu.

2 The Janus-like role of the union’s agent – negotiating both with management and with internal factions – is ultimately a very complex one. On labor negotiations specifically, see Richard Walton & Robert McKersie, A Behavioral Theory of Labor Negotiations (1965). On challenges negotiating agents face generally, see Robert H. Mnookin & Lawrence E. Susskind, Negotiating on Behalf of Others: Advice to Lawyers, Business Executives, Sports Agents, Diplomats, Politicians, and Everybody Else (1999).

3 Even where parties to negotiations are single individuals rather than groups, sometimes one party can sense the other party’s ambivalence regarding a particular issue. While at times it may be beneficial for the ambivalent party openly to share that ambivalence with the other party (for they may help one better understand or resolve it), due to the adversarial aspects of many negotiations, I believe the more typical approach is to attempt to resolve that internal ambivalence before entering the external negotiation.

4 See Jon Elster, Ulysses and the Sirens (1985) and Thomas C. Schelling, The Intimate Contest for Self-Command, in Choice and Consequence: Perspectives of an Errant Economist 57 (1984).

5 See respectively Douglas Stone et al., Difficult Conversations: How to Discuss What Matters Most 109-120 (1999), Roger Fisher & Daniel Shapiro, Beyond Reason: Using Negotiations as You Negotiate (2005), and Leonard Riskin, Knowing Yourself: Mindfulness, in The Negotiator’s Fieldbook 239 (Andrea Kupfer Schneider & Christopher Honeyman, eds., 2006).


Originally published to HNLR Online on Mar. 18, 2010.

New Perspectives in Negotiation: A Therapeutic Jurisprudence Approach

scales_gavel2By Andrew F. Amendola*

I. Introduction

The field of law is experiencing a gradual evolutionary movement, as practitioners eschew the traditional adversarial approach in favor of cooperative methods which produce more beneficial, integrative outcomes.  Recently, interdisciplinary collaborations between the fields of law and social science have endeavored not only to optimize substantive outcomes, but also to create a more therapeutic experience for the parties involved.  This involves determining the psychological, emotional, and physical effects certain legal processes exact on attorneys as well as clients, and adjusting those processes to reduce adverse consequences in those areas.  For legal practitioners, this therapeutic approach can help reduce stress, job dissatisfaction, and other problems associated with the practice of law.  For clients, optimized resolutions and minimized adverse psychological effects are achieved through the attorney’s increased receptivity to their client’s interests, and greater client involvement, which acts as an empowering tool, enhancing the client’s overall well-being.  The result is a more gratifying interaction and overall improved satisfaction with outcomes.

II. The Adversarial Style

The methodology of negotiation has long been associated with aggressively adversarial tactics.  This competitive, attacking, often ego-driven style, known as the adversarial style, is characterized by hard-bargaining, aggressive techniques.  Most adversarial negotiators view the process as a zero-sum, win/lose prospect, and opposing counsel as a warrior opponent in a battle of wits.[1]

The adversarial negotiator’s typical approach involves making high demands, stretching facts, attempts to outmaneuver the opponent, intimidation, and an unwillingness to make concessions.[2] Some lawyers advocate this style, professing its effectiveness in increasing their clients’ gains and avoiding exploitation.[3] It does in fact have numerous advantages; in certain negotiating situations such as pure commodity purchases, lowest-bid transactions, and primarily distributive bargains,[4] the adversarial approach produces optimal results.[5]

The adversarial approach is not the optimal method for all situations, however.  The adversarial style can create tension, mistrust, and misunderstanding, and can often result in fewer settlements, lower joint gains, and provoke costly retaliation from the opponent.[6] It also tends to remove the client from the negotiation equation, which may result in the attorney’s placement of monetary goals above such interests as happiness, well-being and respect (which may be of greater importance to the client).[7] Furthermore, an attorney’s adversarial approach can lead to declining professionalism, overzealous advocacy, and violations of the ethics codes.[8]

Studies by Andrea Kupfer Schneider found that over the past twenty-five years adversarial styles have become more extreme, and are perceived by other lawyers as less effective: “effective negotiators exhibit certain identifiable skills . . . . [A] negotiator who is assertive and empathetic is often perceived as more effective.  The study also reveals distinctive characteristics of ineffective negotiators, who are more likely to be stubborn, arrogant, and egotistical.”[9] Additionally, Kupfer found that “over 50% of the adversarial bargainers were ineffective. . . . As these negotiators become more irritating, more stubborn, and more unethical, their effectiveness ratings drop . . . . As adversarial bargainers became nastier in the last 25 years, their effectiveness ratings have dropped.”[10]

In addition to these results-based disadvantages, the adversarial style of negotiation presents numerous problems that affect the psychological and physical well-being—as well as the effectiveness—of both the attorney and the client.  The adversarial approach is often characterized as “attacking.”[11] When an individual feels attacked, a neurological reaction takes place.  In the brain, the hippocampus induces a heightened sense of alertness (described as the “fight or flight” reaction), affecting the prefrontal lobe in a manner that shuts down executive functioning.[12] This reaction causes extreme stress and anxiety.[13] The amygdala, when stimulated in this way, causes the release of certain stress hormones, including cortisol, which “heightens the senses, dulls the mind, and steals energy resources from working memory and the intellect so that such energy may be used to prepare the individual to fight or run.”[14] High levels of cortisol also produce distraction, mental errors, and “impairment in the ability to remember and process information.”[15]

A. The Source of the Adversarial Mentality

The American legal system is undoubtedly based on the concept of adversarialism.[16] Attorneys generally have been found to possess pre-existing personality traits related to competitive behavior such as dominance, leadership, a heightened need for attention, decreased interest in the emotional concerns and needs of others, and a lower tolerance for assuming subordinate roles.[17] A majority of law students enter law school with the same personality traits as other professionals, but go through a substantial psychological transformation during the first year.[18] The sense of competition inherent in the law school experience causes significant changes in students’ attitudes, values, and motivations, reduces students’ desire for cooperation, and diminishes overall personal well-being.[19] The common teaching style instills in law students the binary, win/lose mindset that naturally gravitates toward the adversarial negotiation style.[20]

B. Effects of an Adversarial Approach on The Client

There are many aspects of the legal process which may produce a strongly negative reaction in the client.  These aspects are called psychological soft spots.[21] For example, sometimes the legal issue confronted by the client—which brought her to seek an attorney’s services in the first place—or the process of reminiscing and openly discussing the issue can cause the client to experience anger, anxiety, fear, stress, or sadness.[22] These feelings may manifest themselves in the form of psychological resistance, minimization, rationalization, denial, or a host of other psychological defense mechanisms,[23] inhibiting the attorney/client relationship, preventing the attorney from learning the full extent of the client’s concerns, goals, and needs, and consequently preventing the attorney from proposing an appropriate course of action to resolve the issue.[24]

Clients are typically in the midst of extremely stressful circumstances when they seek attorneys’ counsel, whether regarding criminal matters, contract disputes, divorces, etc., and often experience physical or emotional pain, guilt, regret, frustration and hatred of their circumstances.[25] The adversarial perspective fails to address these feelings because it operates in a binary, win/lose fashion.[26] This failure may result in less than optimal results and decreased client contentment with the services rendered.[27]

C. Effects of an Adversarial Approach on The Attorney

The adversarial approach tends to promote egocentric behavior and a lack of balance between personal and professional lives.  This often leads to unhealthy levels of stress, feelings of isolation, absence of meaning, and ultimately to the rendering of inadequate or inappropriate legal counsel.[28] Professor Susan Daicoff notes that attorneys’ sense of dissatisfaction with their profession may be due to an overall decline in professionalism fostered by an increasingly adversarial ideology.[29]

These feelings of professional dissatisfaction unsurprisingly also affect attorneys’ quality of work, impairing work productivity and interfering with relationships with colleagues and clients.[30]

The adversarial mindset can cause attorneys to misread their clients’ needs; “[o]ften clients have needs and interests that cannot be addressed through litigation or through an adversarial perspective.”[31] The adversarial approach encourages attorneys to “transform complex, human situations into a dry set of facts that fit into legal rules.”[32] Locked into a win/lose mentality, the adversarial attorney is incapable of assessing the client’s true needs, maximizing value, or addressing underlying sources of dispute.[33]

III. Developments in Negotiation

Negotiation need not be a deleterious process.  In fact, it has the potential to be a healing process which brings disputing parties together to discuss and analyze their differences, resolve conflict, and reconcile disagreement.[34] Numerous alternatives to the adversarial approach have developed in the field of negotiation, many of which appear to be evolving toward a more therapeutic result for all parties involved.  Among these approaches are the cooperative style, integrative bargaining, and collaborative lawyering.  These styles are not mutually exclusive, and often different styles can be used in combination during a negotiation to achieve optimal results.

A. Cooperative Style

Cooperative negotiation can be described as an exploration searching for a mutually acceptable resolution.[35] The cooperative negotiator “communicates to establish a common ground, emphasizes shared values and objectives, and demonstrates a genuine interest in the other side.”[36] A cooperative negotiator generally presents realistic and reasonable opening demands, offers concessions equal to or greater than those offered by the other side, readily shares information, asks many questions to ascertain the other side’s needs, interests, and concerns (through open questioning and active listening), and makes fair, objective statements of facts.[37]

While the cooperative style lends itself to a less confrontational process, it is vulnerable to exploitation.  If matched against an adversarial negotiator, the cooperative party will openly share information, including the weaker aspects of their position.  The adversarial opponent will accept this information, offer nothing in return, and use that information against the cooperative party.[38] When presented with a cooperative opponent, an adversarial negotiator will often “increase their demands and expectations about what they will be able to obtain.”[39]

B. Integrative Bargaining

The integrative negotiator focuses more on “interests” than “positions,” using both competitive and cooperative tactics to expand the pool of resources available to the negotiation, in her attempt to capitalize on “opportunities to create additional value in a phase of the negotiation that will satisfy parties in addition to the negotiator and the client,”[40] essentially allowing all parties to reach a more advantageous resolution than might have been previously possible.

However, critics contend that in negotiations of more limited scope, such as those with primarily distributive issues of contention, often value-creating options do not exist.  In such situations, “rigidly adhering to an integrative framework despite situational factors that do not promote the generation of added value is potentially done to the detriment of the client.”[41]

C. Collaborative Lawyering

The collaborative style of negotiation directly involves both attorneys and their clients, and sometimes incorporates other relevant professionals (e.g. financial advisors, social workers, etc.) in the process.[42] Its objective is “to change the context for negotiation itself, and to provide a strong incentive for early, collaborative, negotiated settlement without resorting to litigation.”[43]

Although each party retains separate, independent counsel, the process differs from traditional negotiation in a number of ways.  First, clients actively participate in the process and retain ultimate decision-making authority.  Second, both parties openly share all information relevant to the dispute.  Third, both parties agree that their current attorneys will be disqualified from representing them in litigation should negotiations fail to reach resolution.  Additionally, any litigation pending at the time negotiation is commenced must be suspended during the process.  Also, the threat of litigation may not be used to coerce settlement.  Fourth, any necessary experts (e.g. financial advisors, accountants, counselors) are jointly retained by the parties.  Finally, both parties must agree to act in good faith to reach a mutually beneficial settlement.[44] Similarly, the participating attorneys, though remaining advocates for their clients, are committed to “keep[ing] the process honest, respectful, and productive on both sides.”[45]

Proponents of the movement suggest that it expedites resolution, reduces legal costs, leads to more integrative resolutions, and enhances both personal and commercial relationships.[46] Lawyers who practice Collaborative Lawyering derive more satisfaction from their work, experience less stress, and have more satisfying relationships with their clients.[47]

Collaborative Lawyering is not without its disadvantages, however.  There are concerns that the process may violate the ethical requirement to zealously represent a client’s interests.  Also, because the collaborative method is based on communication and trust, parties are vulnerable to deception and manipulation.  Furthermore, since the participating attorneys are disqualified from representing those same clients in litigation of that disputed matter, there exists a potential for coercion to settle.

IV. Therapeutic Jurisprudence

Therapeutic Jurisprudence is the “study of the role of the law as a therapeutic agent,” focusing on “the law’s impact on emotional life and psychological well-being.”[48] The movement represents the idea that the law—including the rules of law, legal procedures, and the roles of legal actors—serves as a social force, producing both behaviors and consequences, the effect of which may be interpreted as therapeutic or anti-therapeutic.  It strives to maximize awareness of this fact and attempts to apply the law in a more therapeutic fashion while maintaining the integrity of other legal values such as due process and justice.[49] Incorporating theories and treatment ideas from such fields as psychiatry, psychology, clinical behavioral sciences, social work, and criminology, inter alia,[50] Therapeutic Jurisprudence encourages lawyers to “attempt to create the most beneficial and emotionally satisfactory solution given a particular client’s interests and circumstances,” thus providing a therapeutic outcome.[51] Since its original application to mental health law, Therapeutic Jurisprudence has also been applied to family law,[52] tort law, criminal law, and contract law.[53]

V. A Therapeutic Jurisprudence Application to Negotiation

The emerging styles in negotiation, and the practice of law generally, may be viewed as an evolution toward a more therapeutic process for the parties involved.  A Therapeutic Jurisprudence approach which takes into consideration clients’ interests, needs, and concerns, coupled with a dedication to problem-solving, professionalism, and civility, increases the probability of success in negotiations: “[w]hen lawyers are able to maximize their problem-solving skills balancing assertiveness and empathy, they are more effective on behalf of their clients.”[54]

Clients also play a more substantial, participatory role in the negotiation process under the Therapeutic Jurisprudence model.[55] Attorneys more frequently consult with their clients during the process, exchanging information and devising strategies.[56] Also, rather than dictating whether a settlement offer is optimal, attorneys advise whether the proposed offer is fair compared to the expected outcome at trial, and reasonable in light of the previously-ascertained interests and needs of the client.  This effort can have a significant impact on the client’s satisfaction with the resolution and the legal counsel received.[57]

Therapeutic Jurisprudence is certainly not a cure-all for adversarialism.  There are still many uncertainties and problems surrounding its application.  For example, Professor Christopher Slobogin has contended that Therapeutic Jurisprudence terminology may be too vaguely defined,[58] and its effects too difficult to measure accurately.  Furthermore, conflicts may arise in balancing Therapeutic Jurisprudence with other important factors such as the client’s constitutional concerns, the attorney’s ethical concerns with regard to confidentiality and conflicts of interest, zealous representation, avoidance of paternalism, and attaining therapeutic outcomes for a client without producing anti-therapeutic outcomes for others.[59]

VI. Conclusion: A Measured Approach

A complete transformation to a Therapeutic Jurisprudence model might prove inefficient, wholly ineffective, and ultimately contrary to our traditional notions of justice.  It is important to consider that Therapeutic Jurisprudence need not be an all-or-nothing endeavor; small, measured changes to current negotiation techniques could significantly affect the field in positive ways.  To have the greatest impact and stamina, this change must be initiated early.  Law school clinical programs represent an excellent opportunity to experiment with Therapeutic Jurisprudence approaches to negotiation.  Within the professional legal community, CLE programs, trade magazines, and professional associations could promote more therapeutic approaches to negotiation and report feedback from participating practitioners.

Given the limited effectiveness of the adversarial style, and the trend in negotiation (and legal practice) toward more therapeutic processes, it appears inescapable that subsequent approaches will incorporate elements of the social sciences.  While the integration of law and social science leaves many questions, the interdisciplinary concept does not necessitate that social science theories immediately assume the authoritative position of legal doctrine.  Such theories may simply aid attorneys in tempering their approach and shifting their focus at times in order to represent clients more effectively.  Clients in turn will benefit from a more satisfactory experience, efficient service, and more appropriate, long-lasting resolutions of conflict.  Consequently, attorneys may experience increased job satisfaction, lower levels of stress, and improved morale, and the public perception of the legal profession may return to the level of prestige it commanded in earlier times.[60]


*Andrew F. Amendola is an attorney and author residing in Connecticut. He received his Juris Doctor degree in 2009 from the University of Connecticut School of Law.

[1] See Julie Macfarlane, Dispute Resolution Readings and Case Studies 175 (2d ed. 2003) (explaining the way many adversarial negotiators view their role in the process).

[2] Id.

[3] See Andrea Kupfer Schneider, Shattering Negotiation Myths: Empirical Evidence on the Effectiveness of Negotiation Style, 7 Harv. Negot. L. Rev. 143, 146–47 (2002) [hereinafter “Shattering Negotiation Myths”].

[4] The Negotiation Academy, Collaborative Negotiation Strategy, available at http://www.negotiationtraining.com.au/articles/negotiating-collaboratively/.

[5] A seminal study on the effectiveness of negotiation approaches used by lawyers confirmed that an attorney can be very effective or very ineffective within the constraints of either the adversarial or cooperative methods.  Gerald R. Williams, Legal Negotiation and Settlement 18–19 (1983). However, there are more effective cooperative than effective adversarial negotiators.  Id. at 49.

[6] Macfarlane, supra note 1, at 175.

[7] Andrea Kupfer Schneider, Building a Pedagogy of Problem-Solving: Learning to Choose Among ADR Processes, 5 Harv. Negot. L. Rev. 113, 128–29 (2000) [hereinafter “Building a Pedagogy of Problem-Solving”].

[8] See, e.g., John G. Koetltl, U.S. District Judge for the Southern District of New York, From the Bench, 23 Litigation 3 (1997); Stuart Taylor Jr., Sleazy in Seattle, Am. Law., Apr. 1994.

[9] Shattering Negotiation Myths, supra note 3, at 147–48.

[10] Id.

[11] See Macfarlane, supra note 1, at 171, 172.

[12] Bruce Winick, Therapeutic Jurisprudence and the Role of Counsel in Litigation, 37 Cal. W. L. Rev. 105, 110 (2000).

[13] Id.

[14] Id.

[15] Id.

[16] See, e.g., Urska Velikonja, Making Peace and Making Money: Economic Analysis of the Market for Mediators in Private Practice, 72 Alb. L. Rev. 257, 260 (2009) (“[t]he United States, on the other hand, has relied on an adversarial system of judicial dispute resolution, where each side presents its case and a jury decides the winner.”).

[17] Susan Daicoff, Lawyer, Know Thyself: A Review of Empirical Research on Attorney Attributes Bearing on Professionalism, 46 Am. U. L. Rev. 1337, 1353–55, 1403 (1997).

[18] See, e.g., Connie J. A. Beck, Bruce D. Sales, & G. Andrew H. Benjamin, Lawyer Distress: Alcohol-Related Problems and Other Psychological Concerns Among a Sample of Practicing Lawyers, 10 J.L. & Health 1 (1996).  The authors explain that certain psychological distress symptoms “are not exhibited when the lawyers enter law school, but emerge shortly thereafter and remain, without significant abatement, well after graduation from law school.”  Id. at 2.  The authors also note that in a 1986 study prelaw students did not show significant elevations of psychological distress when tested in the summer prior to law school entry.  Yet, within two months of beginning law school the students’ psychological distress was found to be significantly elevated.  Depending on the group (first, second, or third year), the authors found that 17–40% of the law students fell above the cutoff on symptoms relating to depression.  Of these same students, 20–40% also fell above this cutoff on symptoms relating to obsessive-compulsiveness, interpersonal sensitivity, anxiety, hostility, and paranoid ideation in addition to social alienation and isolation.  A similar pattern was found in law school alumni two years post-graduation.  On a global measure of distress (GSI), the authors found that 17.9% of these lawyers fell above the cutoff for the non-patient normal population mean. In comparing the students at their third year of law school and then two years post-graduation, the study found that symptoms present during the third year had not diminished significantly during the lawyers’ first two years of practice. Id. at 4; Lawrence S. Krieger, Institutional Denial About the Dark Side of Law School, and Fresh Empirical Guidance for Constructively Breaking the Silence, 52 J. Legal Educ. 112, 113 (2001–02).  Additionally, Dr. Andrew Benjamin found that students

[b]ecome much less healthy soon after entering law school.  For example, our research data (and subsequent replications by others) have revealed that before entering law school, only four percent of students suffered from depression, a figure expected from any normal population.  During the first year of law school, about 20% of the students developed depression.  By the third year of law school, 40% of the law students had developed statistically significant levels of depressive symptoms.

Andrew Benjamin, The Role of Law School in Producing Psychological Distress Revisited, available at http://www.law.fsu.edu/academic_programs/humanizing_lawschool/images/benjamin.pdf.

[19] See generally Krieger, supra note 18; Lawrence S Krieger, What We’re Not Telling Law Students and Lawyers That They Really Need to Know: Some Thoughts-in-Action Toward Revitalizing the Profession From the Roots, 13 J.L. & Health 1 (1998–99); Lawrence S. Krieger, Psychological Insights: Why Our Students and Graduates Suffer, and What We Might Do About It, 1 J. Ass’n. of Legal Writing Directors 259 (2002); Kennon M. Sheldon & Lawrence S. Krieger, Does Legal Education Have Undermining Effects on Law Students? Evaluating Changes in Motivation, Values, and Well-Being, 22 Behav. Sci. & L. 261 (2004) (presenting and discussing empirical evidence of the psychological effect law school has on students).

[20] Krieger, supra note 18, at 117.

[21] Bruce J. Winick & David B. Wexler, The Use of Therapeutic Jurisprudence in Law School Clinical Education: Transforming the Criminal Law Clinic, 13 Clinical L. Rev. 605, 610–11 (2006).

[22] Id. at 610.

[23] Id. at 610–11.

[24] Id. at 610.

[25] See Leonard L. Riskin, Mindfulness in the Law and ADR: The Contemplative Lawyer: On the Potential Contributions of Mindfulness Mediation to Law Students, 7 Harv. Negot. L. Rev. 1, 13 (2002).

[26] See Harold Abramson, Problem-Solving Advocacy in Mediations: A Model of Client Representation, 10 Harv. Negot. L. Rev. 103, 118–19 (2005).

[27] See Building a Pedagogy of Problem-Solving, supra note 7, at 128–29.

[28] See Riskin, supra note 25, at 8.  Approximately 20% of attorneys are extremely dissatisfied with their jobs.  Moreover, 19% of attorneys suffered from depression (as opposed to 3–9% in the general population), and 15–18% suffered from substance abuse (as opposed to 10–13% in the general population).  Daicoff, supra note 17, at 1347.  Lawyers also have higher rates of anxiety, divorce, and substance abuse than both the general population and members of other professions.  Id.

[29] Id. at 1334–45.  Daicoff found that

[t]he vast majority of commentators generally agree that the level of “professionalism” displayed by attorneys has declined dramatically in the last twenty-five years. They point to the following as evidence: (1) a decline in civility and courteous conduct between lawyers, an increase in unethical or uncivil behavior among lawyers and judges, frequent lapses of appropriate ethical and professional conduct, and increasingly aggressive, competitive, and money-oriented legal battles, fought with a “win at all costs” approach; (2) increased competition and pressure to win—and the underlying theory that law has become a “business” rather than a profession, placing a heightened emphasis on materialism and money; (3) a decline in attorney and client loyalty to the law firm; (4) frequent and abrupt dissolutions and reconstitutions of large law firms; (5) an increase in aggressive lawyer advertising; and (6) a perceived general decline in lawyers’ values, ideals, and morals.

Id.

[30] See Riskin, supra note 25, at 13.

[31] Id.

[32] Id.

[33] Id. at 16–17.

[34] See Winick, supra note 12, at 112–13.

[35] Colleen M. Hanycz, Trevor C. W. Farrow & Frederick H. Zemans, The Theory and Practice of Representative Negotiation 254 (2007).

[36] Id.

[37] Id. at 255.

[38] Julian Webb et al., Lawyers’ Skills 2007–2008 154 (2007).

[39] Id.

[40] Hanycz et al., supra note 35, at 45.

[41] Id. at 46.

[42] Julie Macfarlane, Experiences of Collaborative Law: Preliminary Results from the Collaborative Lawyering Research Project, 2004 J. Disp. Resol. 179, 180 (2004).

[43] Id. at 186.

[44] Douglas C. Reynolds & Doris F. Tennant, Collaborative Law—An Emerging Practice, 45 B.B.J. 12, 12 (2001).

[45] Pauline H. Tesler, Collaborative Law 7 (2001).

[46] Macfarlane, supra note 42, at 186.

[47] Id. at 190–92.

[48] David Wexler, Therapeutic Jurisprudence: An Overview, 17 T.M. Cooley L. Rev. 125 (2000).

[49] Id.at 125.  Bruce Winick summarized the impetus behind the Therapeutic Jurisprudence movement stating that

[o]nce it is understood that rules of substantive law, legal procedures, and the roles of various actors in the legal system such as judges and lawyers have either positive or negative effects on the health and mental health of the people they affect, the need to assess these therapeutic consequences . . . thus emerges as an important objective in any sensible law reform effort.

Bruce J. Winick, Therapeutic Jurisprudence Applied: Essays on Mental Health Law 4 (1997).

[50] Wexler, supra note 48, at 129.

[51] Building a Pedagogy of Problem-Solving, supra note 7, at 120.

[52] Id.

[53] Christopher Slobogin, Therapeutic Jurisprudence: Five Dilemmas to Ponder, 1 Psychol. Pub. Pol’y & L. 193 (1995).

[54] Shattering Negotiation Myths, supra note 3, at 197.

[55] Winick, supra note 12, at 117–18.

[56] Id.

[57] Id. at 118.

[58] See generally Slobogin, supra note 53.  Slobogin contends that

to measure the therapeutic effect of a given rule . . . therapeutic jurisprudence relies on social science theory and research—in particular, mental health and behavioral work . . . . [These disciplines] may frequently be unable to provide [Therapeutic Jurisprudence] with much useful information for two reasons, one which is general in nature and one which is more specific to [Therapeutic Jurisprudence].  First, social science has often proved inadequate to the task of investigating legal assumptions.  Second, even if this general concern can be overcome, the types of empirical questions [Therapeutic Jurisprudence] asks may be particularly difficult to answer.  Consequently, [Therapeutic Jurisprudence] may be confronted with another dilemma: To the extent it grows dependent on social science data it may rest on shaky foundations, but to the extent it does not it loses its allure.

Id. at 204.  There are also additional concerns that reliance on social science data and standards of evaluations may be misapplied: those attempting to apply the research may not be abreast of newly emerging, relevant literature; users of social science may misinterpret the findings or apply them in the wrong context; lawyers and judges may unduly emphasize social science findings to justify their arguments or conclusions; and social science findings may become a superficial, pseudo-authoritative justification used to mask political or value-laden decisions.  Barbara A. Babb, An Interdisciplinary Approach to Family Law Jurisprudence: Application of an Ecological and Therapeutic Perspective, 72 Ind. L.J. 775, 796 (1997).

[59] Slobogin, supra note 53, at 211–18.

[60] See Amy E. Black & Stanley Rothman, Shall We Kill All the Lawyers First?: Insider and Outsider Views of the Legal Profession, 21 Harv. J.L. & Pub. Pol’y 835, 850 (1998).  In noting the degradation of public opinion toward lawyers, the authors stated that

[p]olls conducted by Louis Harris and Associates, for example, reveal a decline in public perception of the prestige of the legal profession.  For decades, pollsters at the Harris organization have asked random samples of adult Americans to rate the prestige of a variety of occupations.  Each profession is slotted as having “very great prestige,” “considerable prestige,” “some prestige,” or “hardly any prestige at all.”  In 1977, almost 75 percent of respondents believed the legal profession had either very great or considerable prestige . . . .  Twenty years later, public opinion has changed dramatically.  A near majority (47 percent) of respondents to the same question in an April 1997 survey ranked the legal profession as having either some or hardly any prestige at all.

Id.


Originally published to HNLR Online on Jan. 27, 2010.

Collaborative Divorce: A Model for Effective Problem-Solving and Prevention

divorceA Review of Forrest S. Mosten, Collaborative Divorce Handbook*
By
Thomas D. Barton**

Introduction

Collaborate Divorce Handbook, by Forrest S. Mosten, delivers what its title suggests–a complete, point-by-point practical guide for lawyers wishing to learn about collaborative divorce techniques.  But this book also offers much more, and to a far broader readership.  It can inspire all lawyers to adopt a stronger, more effective, and more personal approach to clients.  It can inform related professionals–mental health specialists, coaches, and financial advisors–about the process of collaborative divorce and how they may best join in it.  Finally, the warmth and depth of human understanding in this book can prompt reflection on personal values, professional satisfaction, and the possibility of peacemaking.

The Handbook is the latest chapter in Mosten’s life-long quest to make legal services and counseling more accessible and helpful to the average person.  He pioneered the establishment of legal clinics and unbundling of legal services and has been a leading proponent of Preventive Law, problem solving, and mediation.  He has encountered a broad range of human disagreements and observed their attempted resolution using a variety of alternative techniques.  His reflections on the values and principles underpinning Collaborative Law are thereby uniquely mature, and can be applied throughout legal practice. His eloquent and comprehensive approach offers significant benefits for clients and lawyers alike.  Quoting Pauline Tesler, Mosten speaks of changing the understanding of a lawyer’s role, the relationship with one’s client, the ways of approaching other lawyers and parties, and the structure and commitment to the negotiation process.3

Mosten organizes the Handbook as one would approach the counseling of a client: with respect for the reader’s needs, choices, and intelligence.  Mosten certainly instructs, but he also wants us to succeed. Always open-minded and objective, he compares and contrasts a variety of alternative models to collaborative divorce.  He realistically offers vital advice for how to talk with one’s client as well as one’s counterpart attorney about the collaborative approach when one or both may be resistant to its structure or underlying assumptions.  The book supplies dozens of checklists and tips, together with a supplemental website of testimonials, suggestions, and ways to continue in an organized dialogue with other experienced collaborative practitioners.

Understanding Collaborative Law and Building a Collaborative Practice

In exploring Collaborative Law,4 Mosten addresses three basic questions: (1) what is collaborative law; (2) how is it done; and (3) how can the reader get started in a collaborative practice?

The “what” is a philosophy and basic method that unite varying models of Collaborative Divorce.  The philosophy is that collaboration and settlement should be the “last step along the dispute resolution highway,”5 not a mere way-station before the expected destination in court.  If the divorcing parties feel they must resort to court, the collaborative lawyers have essentially failed.  Although subject to variation, the basic method of Collaborative Divorce is a breath-taking innovation.  Attorneys representing both of the divorcing parties agree that they will withdraw from further representation if a settlement is not reached.6 In other words, the attorneys may not represent a collaborative client in court.  Their work is basically at an end.  Mosten quotes Ousky and Webb: “Collaborative attorneys actually sign a contract that commits them–along with you and your spouse–to reaching a settlement.  The contract, called a Participation Agreement, requires the attorneys to withdraw from your case if they can’t resolve all of your issues out of court.”7

The “how” is equal in importance to the “what,” says Mosten.  This is part of the collaborative attitude.8 The what and how begin to merge in this book, a refreshing approach that values the means for achieving ends, as well as the ends themselves.  Concern for the method by which a settlement is obtained pays rich dividends in the future relationships of the parties and their children.  Mosten writes:

The how is the way the parties speak with each other when discussing concerns that each has with the other.  Traditional lawyers often focus on the terms of parenting and financial agreements and try to avoid discussing the how or assume that such toxic and damaging spousal interaction will never change.  Collaborative lawyers believe that by helping parties with the process, lasting settlements occur more frequently and with much reduced transaction costs.9

The collaborative lawyer uses transparency and candor10 to expand both the framing of the problem and the cooperative spirit by which it can be addressed:

The way a problem is defined often dictates its outcome.  Adversarial lawyers . . . may limit the problem and its solution to mirror how a judge would decide the matter if litigated . . . . Collaborative lawyers believe that the legal outcome is just one of the many ways to define the problem.  By opening up new creative perspectives of how a solution may be addressed, settlements can be reached by widening the scope of the problem to include the relationships of all members of the family, how the parties will emotionally handle any solution, and how the result will affect finances now and in the future.11

Once the aims of successful divorce representation are opened up, so also is the method that can and should be used.  This is introduced under the topic of “Values and Principles of Collaborative Law.”  Mosten introduces, and later elaborates, on each of these tenets:

  • Respect and dignity for the other party and other professionals
  • Direct and open communication with the other party and professionals;
  • Voluntary and full disclosure of relevant information and documents necessary to make agreements;
  • Commitment to the healing of the family; [and]
  • Use of interest-based negotiation to try to meet the needs of both parties.12

Lawyers should not take for granted that these attitudes generally prevail in divorce representation or in other areas of practice.  The adversarial system is primarily designed for achieving truth, not for facilitating strong future relationships.  But the adversarial system is the foundation of Anglo-American court procedures, as well as of traditional thinking about lawyers’ professional responsibility.  Indeed, one key element in Collaborative Law practice has raised some legal ethical concerns.  It is the commitment made by collaborative lawyers to refrain from representing clients in court, should settlement negotiations stall or fail.  As Mosten explains , the participation agreement can be a private agreement among parties and professionals or a court order.  This agreement is signed in addition to separate engagement agreements between each client and each professional.  It is important for all parties to understand the agreement terms.  If either party terminates the collaborative process or participates in adversary proceedings in violation of this agreement, the attorneys and all other collaborative professionals should not continue representing the parties, and new attorneys and professionals should be hired.13

In requiring the lawyers to withdraw from further representation in the event that the issues cannot be resolved out of court, some feel that the pressure on collaborative lawyers to settle is simply too strong.  They feel the client’s interest could be compromised by the lawyer’s felt need to continue the representation.  Some others are uncomfortable with the possibility of one lawyer forcing a withdrawal of another attorney’s representation.14 Mosten is straight-forward in his defense that lawyers using this “disqualification” clause remain within the traditional responsibilities to the client:

If you serve as a lawyer for a client who decides to use collaborative divorce, your client is entitled to the same professional obligations of competence and loyalty to which you would [be] obligated in any other lawyer arrangement.  In concrete terms, this means that you have a duty to pursue the client’s objectives, protect your client from financial harm and legal exposure, inform your client of legal rights, produce competent work, keep all attorney-client communications confidential, avoid conflicts of interest, and ensure that your fees are fair and that clients understand them.  Although your approach may differ from the traditional model, you are still a lawyer.15

For additional help, Mosten also supplies a section entitled “Questions and Answers About Ethical and Competent Service,” which addresses issues arising for lawyers living in states both with and without specific collaborative enabling statutes.16

Furthermore, says Mosten, responsible practice requires that an attorney walk a new client step-by-step through the process of obtaining an informed consent of a client, explaining each of the alternative models of representation that are available.  This should be done even if the lawyer is not willing to represent the client under one or more of those alternatives.17 Mosten supplies a well-organized template to direct this discussion, entitled “A Guide for Discussion with Clients on Collaborative Practice.”18 Each of the various aspects of alternatives of collaborative representation is shown in a column, parallel to which are additional columns describing first the benefits, and then the risks, of those choices.19

Included in one row of the template, for example, is an entry marked “Trained Collaborative Professionals.”  That appears because the collaborative model does not assume mere collaboration among lawyers and clients.  Included also in the idea of Collaborative Divorce is participation by one or more other professionals: psychologists, child specialists, divorce coaches, mediators, and financial planners.  The family is seen as a system comprised of a variety of people and needs, present and future, not all of which are necessarily best addressed by lawyers.

The particular roles and responsibilities of each of these specialists are valuably analyzed.20 In considering how those other professionals may be used, however, Mosten again does not urge one particular model.  Instead, he describes alternative structures, compares their advantages and shortcomings, and stresses choice, practicality, and flexibility.  This part of the Handbook is especially useful for lawyers who may be inexperienced in how to work with other professionals.  Mediators, coaches, psychologists and financial analysts involved in divorce work would also benefit greatly from the dozens of practical tips as well as broad understanding of collaborative structure that Mosten provides.

Obviously, adding these other professionals increases the cost of forging a divorce settlement, a concern for both the lawyers and the parties who must ultimately bear those costs.  On the positive side, this team approach still is likely to be less expensive than resort to litigation.21 Furthermore, the resulting agreement and more positive relationships may prevent many future problems with unknown but potentially substantial costs.  On the other hand, “there appears to be no data showing [Collaborative Divorce] is less expensive than traditional lawyer-negotiated settlements . . . and no data comparing the cost of collaborative divorce to mediation, even with consulting attorneys.”22 That raises at least two issues.  First, how should one discuss these costs with a client so that informed consent is reached?  And second, what steps may be taken to reduce the costs of using collaboration, especially with a full interdisciplinary team?

On the first issue, Mosten’s informed consent template sets out the benefits and risks to the client.  On the benefits side,

You and your spouse may benefit from using a team of collaborative professionals with different skills.  Collaborative professionals usually have had special training to help promote constructive settlements.  By investing the time and money for professional training, collaborative professionals demonstrate a commitment to constructive negotiation.23

The risk, however, is that “[y]ou or your spouse may feel some pressure to use more professionals than you want or feel that you can afford.”24

As possible mitigation of some of those costs as well as to broaden the choice and effectiveness of the collaborative process, Mosten includes analysis for which he is perhaps uniquely qualified.  He draws upon his years of varied experience in the chapter entitled “How Collaborative Divorce Works with Mediation and Unbundled Legal Services.”25 Here, Mosten describes how “mediation can be a partner with collaborative divorce”26 and how unbundling is an inherent, but flexible part of collaborative lawyering.

Mediation, of course, is a well-known process in which lawyers may act in the role of either the neutral mediator or as the representative of a party engaged in mediation.  Mosten systematically sets out a broad variety of ways in which mediation could be used to augment the collaborative approach, or as an alternative to it.  In each variation, Mosten describes the differing roles that could usefully be played by the lawyer.

Although expensive, “having collaborative representatives plus a mediator may be the best of all worlds . . . . ”27 “Many clients want to use the neutrality of mediation but also want the advice and protection of an attorney who would both be mediation friendly and supportive of it and affordable.”28 Mediation could, for example, be a useful adjunct to collaborative divorce at the beginning of the process.  Mosten describes this possibility from the client’s perspective:

If you arrange for a mediator to join the collaborative process from (or near) the beginning, you may design a process that helps your clients have it all ways.  Your client gets your support, advice, and feeling of your protection, and the other party gets similarly taken care of by the other collaborative lawyer or team.  At the same time, the mediator can set a neutral and safe atmosphere while playing a more jarring role as agent of reality, testing the parties’ positions and trying to gain movement toward consensus and a result that both parties can live with.29

Alternatively, mediation can be useful if problems develop, or to resolve conflicts among the various professionals.30 Mosten explains the common-sense nature of this:  Often you and your collaborative partner can reach agreement without a mediator.  However, if trouble develops, you need to stress the mind-set: “It is not a choice between the collaborative process and litigation.  It is a choice between the current structure of the collaborative process that is not resulting in an agreement and the challenge of finding a workable new structure that will get the job done .”31 Therefore, rather than terminate the collaborative process, disband the collaborative professional team, and require the parties to obtain litigation counsel to ready themselves for a courthouse battle, you can build in mediation as the fail-safe logical next step if either or both parties are ready to terminate the collaborative process.32

Unbundling is a less familiar technique, but it can help trim the costs for a client who wants a collaborative divorce process:

In unbundling . . . the client is in charge of selecting one or several discrete lawyering tasks contained with the full-service package.  The client specifically provides for which services the attorney will provide, how extensive the services will be, and how to determine the communication and decision-making control between the client and the attorney.33

As Mosten describes it, attorneys outside of the collaborative context can separate out various services like advice, research, factual collection and investigation, drafting, negotiation, and court appearances.34 Those aspects that a client feels capable of undertaking alone, or with the lawyer as a background coach, can be removed from the formal scope of representation (and billing).

Interestingly, relatively little experimentation with unbundling has occurred as of yet within the collaborative divorce process.35 As Mosten puts it, to date “the growth of collaborative divorce has been among clients who otherwise can afford lawyers, and very few collaborative divorce professionals have focused on ways to penetrate the underserved and otherwise unrepresented market.”36

Conclusion

Mosten delivers a wealth of information and advice, most of which cannot be discussed in this short review.  Certainly Collaborative Divorce is growing quickly, and Mosten’s Handbook is essential reading for any family specialist, regardless of legal training.  Beyond that, any lawyer interested in the emerging paradigm shift in legal thinking and method that several writers have identified can get a rich sense of its attributes through Mosten’s work.  Finally, those who believe in the power of empathy, reason, and respectful communication–values that historically gave rise to the Rule of Law–can be encouraged from this book.  Even in one of life’s most difficult, intimate, and emotional settings–the dissolution of a family–Mosten shows that lawyers can play an important role in promoting peaceful and productive transitions.


* Forrest S. Mosten, Collaborative Divorce Handbook: Helping Families Without Going to Court (Jossey-Bass, 2009) [hereinafter Handbook].

** Louis and Herminone Brown Professor of Law, California Western School of Law.

3 Handbook, supra note 1, at 6, 7.

4 “Collaborative Law” is typically used as a synonym phrase for “Collaborative Divorce” because to date the model of collaborating lawyers representing different parties has been employed almost exclusively in divorce settings.  Theoretically, however, the attitudes and skills underpinning collaborative divorce could begin to be employed toward resolving legal issues beyond divorce or family law.

5 Handbook, supra note 1, at 8.

6 Id. at 22, 29.

7 Id. at 29, quoting Ronald D. Ousky & Stuart Webb, The Collaborative way to Divorce 6 (2006).

8 Id. at 14.

9 Id.

10 Id. at 15.

11 Id. at 14.

12 Id. at 21.

13 Id. at 29.

14 For a thorough and insightful analysis of the ethical implications of various permutations of disqualification clauses in Collaborative Agreements, see Scott R. Peppet, The Ethics of Collaborative Law, 2008 J. Disp. Resol. 131 (2008).

15 Handbook., supra note 1, at 45, 46.

16 Id. at 140-145.

17 Id. at 129, 130.

18 Id. at 146-150.

19 Id.

20 Id. at 52-58.

21 Id. at 64.

22 Id.

23 Id. at 147.

24 Id.

25 Id. at 59-77.

26 Id. at 64.

27 Id. at 68.

28 Id.

29 Id. at 74.

30 Id. at 75-76.

31 Id. at 75.

32 Id.

33 Id. at 59-60.

34 Id. at 61-62.

35 Id. at 64.

36 Id.

Originally published to HNLR Online on Dec. 28, 2009.

Decisional Errors – On the Field, On the Bench, In Negotiations

fullscreen-capture-1112009-82720-pmbmpThe Question is Not Whether Humans Make Decisional Errors, But How to Compensate for Them

By Donald R. Philbin, Jr.

ESPN recently dubbed baseball umpire Tim McClelland’s missed calls in Game 4 of the American League playoffs as “the worst umpiring performance at an Angels games since Leslie Nielsen in ‘The Naked Gun.’1 While his mistakes were not outcome determinative, they rekindled calls for the use of instant replay.

Those of us who have spent time with disputants were not surprised.  As New York Yankee Derek Jeter put it: “Umpires are human.  They make mistakes sometimes.”2 We routinely anticipate errors and design systemic checks to identify and address them.  Appellate courts and appellate arbitration panels, like instant replay, owe their existence to the need for second (or third) looks.

In fact, the ultimate second-looker famously analogized the roll of judges to umpires in his confirmation hearings.  Chief Justice John G. Roberts of the United States Supreme Court said, “Judges are like umpires . . . Umpires don’t make the rules; they apply them.”3

In a takeoff from Malcolm Gladwell’s best-selling book Blink, Professor Chris Guthrie drilled into judicial error rates in Blinking on the Bench: How Judges Decide Cases, 93 Cornell L. Rev. 1 (2007).  There, law professors asked a large group of trial judges to respond to a three question survey at a judicial conference. Each question has an intuitive, snap answer (a “blink”) and another analytical answer that might be the result of a reasoned opinion. Perhaps unfairly, the questions were not application of law to fact questions that judges might face at work, but analytical quizzes reminiscent of the SAT:

1.       A bat and a ball cost $1.10 in total. The bat costs $1.00 more than the ball. How much does the ball cost?  5 (not 10) cents

2.       If it takes 5 machines 5 minutes to make 5 widgets, how long would it take 100 machines to make 100 widgets?  5 (not 100) minutes

3.       In a lake, there is a patch of lily pads. Every day, the patch doubles in size. If it takes 48 days for the patch to cover the entire lake, how long would it take for the patch to cover half the lake? 47 (not 24) days

The authors reported a 1.23 mean, but parties unable to settle out of court may be more interested in the fact that 31% of the responding judges did not get any of the questions right. There may be inherent problems with this and any survey. The judges may not have put much effort into the break-time quiz at their information packed conference and the questions do not approximate what they are asked to do on the bench. But that is little consolation to those on the “wrong end” of a judgment they forced by not making their own deal in mediation.

Another major study concluded that even parties advised by experienced litigators are not above error.4 Comparing actual trial results with rejected pre-trial settlement offers in more than 4,500 cases and 9,000 settlement decisions made during a 44-year period, the study found that 61% of plaintiffs and 21% – 24% of defendants obtained an award at trial that was the same or worse than the result that could have been achieved by accepting their opponent’s pre-trial settlement proposal. Yet while plaintiffs tend to make more errors in their estimates more frequently, defendants do so with greater severity. When a plaintiff misses the mark, she is only off by an average $43,100. The defendant misses less frequently, but the verdict is 26 times the last offer when he does: $1,140,000.

Psychologists have long taught us that people with exactly the same information reach different conclusions.  Buyers rarely want to pay as much as sellers demand, whether negotiating the sale of a house, car, or lawsuit.  It’s largely a matter of assigned position. But the magnitude of the decisional error is telling.  Subjects asked to price a generic coffee cup for sale assigned it a value of $7.12. Buyers initially offered $2.88 for the same cup – 2.5 times less.4

These studies confirm and quantify what we know intuitively:  people (including umpires, judges, litigants, and others) make mistakes and when litigants are wrong, sometimes they are very wrong. The barrier preventing resolution may not be that litigants can’t see the same solution; it may be that they cannot see the same problem.

Mediation is a commonly used to debias positional assumptions that lead to impasse.  The reality is that we reactively devalue everything our enemy says, even if it would be helpful to us – “that can’t be good for us, or they would not have offered it.”  In fact, a Cold War experiment quantified the magnitude of this reactive devaluation bias. Soviet leader Gorbachev made a proposal to reduce nuclear warheads by one-half, followed by further reductions over time.  Researchers attributed the proposal to President Reagan, a group of unknown strategists, and to Gorbachev himself.  The surprise was not that the group reacted differently to the same proposal depending on its source, but the wide range of difference. When attributed to the U.S. President, 90% reacted favorably. That dropped marginally when attributed to the third-party (80%), but in half (44%) when attributed to the Soviet leader.5

So the surprise is not that an umpire missed a call, it’s how to deal with it systemically.  Like litigants, baseball stakeholders have options, and a quick appellate ruling from the pressbox may be the most expedient here since the full record is easily available.

dptree

Donald R. Philbin, Jr. is an attorney-mediator, negotiation consultant, arbitrator, and Adjunct Professor at Pepperdine University School of Law — Straus Institute for Dispute Resolution. For more info, see http://www.adrtoolbox.com/.


1 Caple, Jim, Umpire errors a real embarrassment, ESPN.com, Oct. 20, 2009, available at http://sports.espn.go.com/mlb/playoffs/2009/columns/story?columnist=caple_jim&id=4581598

Id.

3 Bruce Weber, The Deciders: Umpires v. Judges, N.Y. Times, July 11, 2009, at WK1, available at http://www.nytimes.com/2009/07/12/weekinreview/12weber.html?_r=1.

4 Randall L. Kiser, et. al, Let’s Not Make A Deal: An Empirical Study Of Decision-Making In Unsuccessful Settlement Negotiations, 5 J. Empirical Legal Studies 551-91 (Sept. 2008), available at http://www3.interscience.wiley.com/cgi-bin/fulltext/121400491/HTMLSTART.

5 Donald R. Philbin, Jr., The One Minute Manager Prepares for Mediation: A Multidisciplinary Approach to Negotiation Preparation, 13 Harv. Negot. L. Rev. 249 (2008), available at http://adrtoolbox.com/docs/HNLR_Philbin.pdf

Originally published to HNLR Online on Nov. 1, 2009.

Power Differentials in Negotiation: Don’t Let ’em Push You Around

knight-queenBy Stephen Frenkel

Participants in MWI’s Collaborative Negotiation Trainings often ask how they should handle significant power differentials. Most frequently, this question is asked by those who perceive themselves to be in a position of lower power. “A collaborative approach is all well and good,” they say, “but what happens when the other side doesn’t need to buy into that approach because they have the upper hand?”

My first approach is to challenge them on the assumption that they have little or no power in their negotiations. Negotiators often see the “grass as greener on the other side” and, in our experience (having worked with both sides of the table), we find negotiators most often buy into the false assumption that they are the more vulnerable party.

It’s essential to point out that, even if one party has less power by certain standards (resources, level of influence, etc.) they still have some power which can be leveraged. When we consider that the entire purpose of a negotiation is to create and extract as much value as possible from the combined experience or resources of all players, this becomes more apparent. After all, if either party could go it alone, why would they be negotiating with each other in the first place? They’re negotiating because they need each other (or could at least see the possibility of benefiting from each other) in some form or fashion. In other words, they’re already aware that the value that can be created between them is greater than the value they can create on their own.

Our challenge is to make this understanding explicit. We must confirm that both parties recognize the value of taking a collaborative approach to negotiating and, through this confirmation, incentivize them to continue conversations in a productive manner that enables both parties to benefit from the interaction. We build our capacity to do this through systematic pre-negotiation preparation that takes the following into account:

Effective preparation begins with an analysis of your and their Interests (i.e., their needs, concerns, goals, and fears). Define what’s important to them and ask yourself – how does working with you meet those needs better than working with any of your competitors? Though many choose to focus on price, I’d caution you against this. Price wars tend to do little but drive down the bottom line for your entire industry and train your negotiating counterpart to threaten to walk so you’ll give in. Rather, shift the focus to the other matters that are important to them: customer service, access, time to market, quality of product or services, payment terms, and other tangible or intangible aspects of the deal that make up the total value of the arrangement.

It’s vital to find out what’s important to your counterpart and to articulate, however you can, how you meet those needs better than anyone else they might work with. This is essentially your value proposition. In this way, you make yourself as indispensable as possible and limit their power as they realize that they need you as much as you need them or that they benefit more from your involvement and contribution than from anyone else’s. You’re no longer a “commodity;” you’re a rare exception that brings more value to the partnership than anyone else in the field.

Second, at the same time that you’re articulating your value proposition to them and therefore limiting the attraction of their Alternatives (i.e. what they’ll do to meet their needs if they don’t come to agreement with you), you should be researching and improving your own Alternatives. Who else could you meet with and work with that would satisfy your Interests as well as your counterpart can? Unfortunately, in instances such as business development in which you’re already pursuing other business regardless, Alternatives seem limited. In these instances, you can’t necessarily find a replacement (as you could in a negotiation over a car). Admittedly, however, should you happen to win all other business pursuits, you become much less “desperate” for theirs.

Knowing how you define success, and what you’d do if you don’t reach agreement, can prepare you to walk away if the proposed outcome does not meet your needs. Furthermore, if they’re pushing unfavorable terms (such as unreasonable risk or liability without appropriate rewards), knowing you have the Alternative of walking away and turning down business that’s potentially harmful to you can be empowering in and of itself.

This brings us to our third source of power in negotiation – Objective Standards. Objective Standards are benchmarks, industry norms, precedents, and other ways that negotiators determine if an idea or potential resolution is fair. Researching Objective Standards and raising them at appropriate times can protect you from susceptibility to unreasonable requests. You should know what’s fair – as determined not by you or your counterpart, but by others – your industry, laws, expert opinions, and other facts aren’t capable of being manipulated by either you or your counterpart. Understanding what’s fair and reasonable and having the capability to inform yourself and your counterpart on what’s “reasonable” is a source of power.

In conjunction with the Objective Standards you raise, it’s important to Communicate your level of Commitment and the consequences for them and for your Relationship should they try to coerce you to accept unfavorable terms. Help your counterpart take a long-term view, pointing out the short-term benefits of their taking advantage of their power as well as the long term consequences – which can include but are not limited to: a damaged relationship, your looking to extract value elsewhere in the process, both of you developing a damaged reputation for business in your industry, etc. It’s important for your counterpart to realize that a bad deal for you is essentially a bad deal for them.

Once it’s clear that you’re interested in a deal that’s fair, reasonable, durable and sustainable, together you can generate the Options that satisfy both of your needs. Your success depends not only on your ability to prepare for the negotiation and to execute it effectively, but also on your ability to engage with your counterparts and to educate them on the value of taking a collaborative approach. Securing a commitment from your counterpart to negotiate collaboratively is a critical first step in dealing with perceived power imbalances. Negotiations should be viewed as an opportunity for sustained partnership generation and long-term value creation. Failing to persuade your counterpart to negotiate collaboratively with you will result in outcomes that are based not on the strength of your combined ideas, but rather on who can exert more power over the other. Whether either of you realize it at the time or not ,this results in multiple casualties over the long-term.


Stephen Frenkel is the Director of Negotiation Programs at MWI, a negotiation training and consulting firm based in Boston, Massachusetts. Stephen can be reached at sfrenkel@mwi.org or at 800-348-4888 x24. More information about MWI can be found at www.mwi.org/negotiation.

Originally published to HNLR Online on Oct. 21, 2009.

Settlement And Justice For All

DOJBy Robert C. Bordone & Matthew J. Smith

Recently the Justice Department announced that it had entered into a $2.3 billion settlement agreement with pharmaceutical colossus Pfizer, bringing to a close a four year investigation alleging that Pfizer had illegally marketed and promoted the painkiller Bextra as a remedy for conditions that had not been approved by the FDA. As the federal and state prosecutors involved in the case celebrated the largest health care fraud settlement in U.S. history, a small but vocal contingent of legal academics, prosecutors, and citizen groups lambasted the outcome, insisting that only a proper trial and jury verdict could do justice in such an important and high profile case.

We disagree. Read more

Systems for Dealing with Conflict and Learning from Conflict—Options for Complaint-Handling: an Illustrative Case

chessBy Brian Bloch, David Miller, and Mary Rowe

The phone rings in the Ombuds Office[1]. A Ms. Lee is telephoning the ombudsman from far away. Lee is a department head in our organization who is temporarily assigned overseas. She says that a colleague, Ms. Dula, insisted that Ms. Lee call the Ombudsman immediately. Ms. Lee says that Ms. Dula noticed her crying in the bathroom, listened for a while, and then Ms. Dula insisted that Ms. Lee must consult with someone. The Ombudsman seemed to be the least threatening option.

In the Ombuds Office we do not know what we will hear. A case introduced in such a way might be about any very delicate issue. The central concern could be cruel, closed-door humiliation by a supervisor or mentor. It could be racial or religious hatred or sexual abuse or someone with an obsession. It might be suspicion or knowledge that a powerful person has misused resources, embezzled money or committed fraud. It could be fear of violence or gross safety violations. Most delicate cases include several different issues; perceived humiliation, intimidation and conflicts of interest are often part of a complaint, and so are allegations of multiple infractions of policies and rules.

It is also possible that we will hear perceptions of fact that turn out not to accord with reality. As one of our colleagues, Howard Gadlin, says, “If an organization has an Ombuds Office that is really trusted, and whose confidentiality is actually believed in, then you get people coming forward who have ‘no case’ at all.” So we try hard to maintain professional discipline and due caution.

The caller is often afraid, very upset and feeling trapped in her or his situation. For example, the alleged offender may be powerful and charismatic, with many connections. The alleged offender might be a senior leader, a major donor or customer, or someone who controls the future of the complainant. A complainant may be afraid to let her family know about her problem if it seems to reflect on her own behavior, for example her chastity. A complainant might be a temporary worker or contractor who risks his visa and his family’s future if he loses his job.

A caller may believe that she cannot realistically make a formal complaint, because she lacks conclusive proof of the offense. Or a caller may feel humiliated even to talk about what happened, if he thinks he should have been able to deal with a problem on his own. Many callers blame themselves. Many callers can see no way out, and can feel things getting worse and worse. “I have let this go on far too long,” says one or another caller, and sometimes the ombudsman silently agrees.

Ombudsmen know that people are often puzzled that they or others have not taken action in apparently egregious circumstances. Our experience is that only a relatively small proportion of the population is comfortable with formal actions (although, importantly, some in this group are satisfied only by formal investigations and formal action.) But most people, most of the time, are quite reluctant to act on the spot, or report unacceptable behavior, if they believe this will result in formal action. This is one of the reasons why options are needed in a complaint system.

What might the ombudsman do? One would be as empathic as possible and set aside whatever time was necessary to listen and talk with Ms. Lee. At whatever moment the ombudsman begins to speak—sometimes one simply listens for a period of time—an ombudsman would often begin by explaining confidentiality, neutrality, the informal nature of the Ombuds Office—we almost never make management decisions—and the independence of the office.

Typically we make a major point about confidentiality with a caller, and we think a lot about it, ourselves. The International Ombudsman Association’s Code of Ethics[2] states: “The ombudsman, as a designated neutral, has the responsibility of maintaining strict confidentiality concerning matters that are brought to his/ her attention unless given permission to do otherwise. The only exception, at the sole discretion of the ombudsman, is where there appears to be imminent risk of serious harm.” We will always be thinking whether there may be imminent risk of serious harm to the caller, or to someone else. And we will always be thinking about the options that exist within our conflict management systems.

Whatever Ms. Lee’s concern may be, we would try to help her to consider that she does in fact have options and some hope. However insufficient to her account of fear and perhaps injury, there may be some options to help her at least a little, in dealing with her situation. Together with her, we would look for ideas, perhaps including:

1. Possibly Ms. Lee does not have to take any immediate action. She may be able to find informal support from Ms. Dula or others—perhaps from a member of her family back home; from social workers, health care, legal and religious advisers; a mentor in the organization. We would ask if she has consulted anyone else, and will try to develop ideas about other trustworthy people who could help her if she wants time to think about her options.

2. Ms. Lee and the ombudsman might discuss possibilities for her to get a little time off, if that would be helpful, or to come back home if she is away from home. If she says her situation is untenable, and also is unwilling to choose another option below, Ms. Lee and the ombudsman could discuss possibilities for a transfer, in case that is possible, perhaps to another department or another country. In some situations Ms. Lee might consider a formal complaint after she has safely left the situation. (If the complainant feels strongly about having to leave, the ombudsman may be mentally adding this issue to the list of concerns to consider in the case. That is, is it possible that the complainant is being driven out? Or that she is fleeing a situation where she herself has behaved badly? Or both?)

3. In some situations, the ombudsman may be able to help by explaining relevant policies or procedures that were unknown to Ms. Lee, or hard to understand. In our experience very few managers and employees actually know the rules and policies of their organization. In addition, many do not understand the local cultures and cross-cultural “common laws” that obtain in most organizations. Thus a discussion of norms and expectations and rules may be helpful—in affirming her feelings, or helping her understand why some kinds of supervisory behavior are in fact considered acceptable—or both. (Please see also the accompanying article by David Miller on the importance of codes of conduct.)

4. In some situations, the ombudsman—with permission—may be able to help by making a quick phone call to a relevant compliance office. (See, as examples, Audit, Ethics, HR, EEO, General Counsel, Waste Hazards and other compliance offices on the Chart attached.) It may be possible to alert the relevant compliance office to the facts of the concern, without any mention of Ms. Lee.

5. Ms. Lee might be able to write the facts of a situation or call a Hot Line, without betraying who she is. Anonymous complaints can sometimes bring attention to safety problems, financial misbehavior, and other issues, and the ombudsman or Hot Line will know which person in the organization might do some fact-finding and take action, and where Ms. Lee might direct a factual letter. Some organizations say that they do not act on anonymous complaints. However, in our experience most organizations do take note of truly serious, anonymous communications, at least with respect to issues where investigation is compulsory.

6. We might help Ms. Lee to think about drafting a formal letter to the person she sees as the offender. She might set forth relevant facts as she sees them, and the effects of relevant events. She might state whatever she thinks should happen next, or ask for a remedy, if there is anything for which she would wish to ask. (An example might be to ask for setting things right in the situation she describes.) Just drafting such a letter may help her to deal with grief, and to think through her possible options, and to prepare for any formal option that she may choose.

7. We might also help Ms. Lee to think about writing a letter to her supervisor, if this is not the same person as the offender, setting forth the facts as she sees them, and the help she needs, and also, any concerns about her work. Drafting such a letter might help her to prepare, if eventually she wishes to talk with her supervisor. Discussing such a draft with Ms. Lee may provide the Ombudsman with a chance gently to explore how others might view the situation. And of course, if Lee is willing to communicate with her supervisor, this may help that person and the organization; supervisors can act much more effectively if they have the information they need.

8. Ms. Lee might also consider drafting a formal complaint to appropriate senior managers or compliance officers. This process often takes a little while. As noted above, this may be useful both for collecting the facts, and for being able to cope emotionally with what has been happening. From the ombudsman’s point of view this is also a process that may help Ms. Lee see other sides of the story in cases where that would be appropriate.

9. Ms. Lee and the ombudsman might also discuss what she would wish to say to the (alleged) offender, her own supervisor or to relevant senior managers—if she were to meet with any of them. We could help Ms. Lee to consider what she might want to accomplish at any such meeting and the possible things that the other person might say or do. We might role-play the meeting, with the ombudsman playing the role of the other person. Ms. Lee might consider, at such a meeting, handing in the letter described above. If the organization permits an accompanying person, we might talk about whether she wishes to ask a workplace associate to accompany her.

10. In some cultures and with respect to certain problems, it is possible that Ms. Lee would wish to think about some form of mediation. If Ms. Lee wants to make a request, mediation may be helpful. She might choose the ombudsman as a neutral, or some other person, like a mentor, or a revered older person, or a designated mediator from a Mediation Office.

11. In some situations it might be helpful for the Ombuds Office to ask an appropriate office for an immediate training program, in the region or department where Ms. Lee is working. There might be training about relevant codes of conduct. The training might be about harassment or safety policies; about relevant laws of the country; about resources available for people who perceive unacceptable behavior; or about options for bystanders. Generic actions like these may stop inappropriate behavior. Generic actions sometimes make it easier for people to act on the spot, or come forward, and may thereby help to prevent harm in the future.

12. In some situations the ombudsman might offer to talk with the alleged offender, or with Ms. Lee’s supervisor, or with a relevant senior manager.

13. In some situations, Ms. Lee could register a formal, written complaint with the most senior organizational leader or manager in the country where she is working.

14. We could seek relevant resources that might be available in the country that Ms. Lee is in, for example, resources for women, to see if she wishes to consult with them.

15. Ms. Lee could go to relevant organizational security or outside police officers. Ms. Lee might register a formal complaint with the relevant judicial system.

16. While considering the options above, Ms. Lee might decide, to “wait and see if anything else happens.” In such a case we might suggest that she consider keeping a careful log, with dates and times, noting witnesses, if any, and any additional evidence of events that cause concern. As with option five above, a log of this kind may help someone assess what is happening, may contribute to evidence, and may help the person regain some sense of control over his or her life.

17. Occasionally a person will ask about “how to make a formal record” without using any of the formal options above. The Ombuds Office keeps no case records for the organization, but a person can mail a securely sealed letter to him or herself, or even send such a letter by registered mail, to him or herself. This might later serve as a record.

18. If Ms. Lee mentions other parties in her discussion of concerns, the ombudsman might explore with Ms. Lee what the options might appear to be for these other stakeholders—and to try to think ahead what they might choose to do under various circumstances. In relevant cases, the ombudsman might also ask whether Ms. Lee would want her own call to be disclosed, if another stakeholder were also to call—or whether Ms. Lee would prefer not to give such permission.

Usually it will appear that there are shortcomings for every possible action. It may take Ms. Lee a little time to reach a decision on how to proceed. Ms. Lee might choose more than one option, or plan to try several options sequentially if needed. Maybe none of these options will do, and we are likely to continue to search for another. Especially if Ms. Lee chooses “wait and see,” the ombudsman may follow up and follow up, many times.

Complex cases are often challenging for an ombudsman. We would constantly be trying to maintain objectivity since we often cannot be sure about any of the facts of a situation. We would try to think if we were affirming Ms. Lee’s feelings enough for her not to feel alone, or in despair, without actually being drawn so far into the situation that we have lost objectivity about the facts. Such objectivity is needed both to help her, and to consider the rights and interests of others, and to consider the interests of the organization itself. There are many questions to consider, especially if different nationalities, religious groups and cultures are involved.

The ombudsman must think about whether, if Ms. Lee’s story is true, there may be risk to any other person, and if so is there imminent risk of serious harm. We must also think, whether the story is true or not, about the rights and interests of the alleged offender. And what needs to happen, in the very rare case that the alleged offender does not exist—or has been in another country entirely, and the alleged offense cannot have taken place? It will be clear that we must listen with great care.

The ombudsman will likely consider the role of Ms. Dula—is her knowledge important in a formal sense, for example to back up Ms. Lee? Does she know more than we know she knows? Does her having heard Ms. Lee’s story constitute “notice” to the organization? Will she make trouble or be helpful, if Ms. Lee gets back to her, and ought the idea of getting back to Ms. Dula be discussed with Ms. Lee? Are there others like Ms. Dula with whom Ms. Lee has spoken? Does Ms. Lee know of others who have faced the same kinds of issues? We will try to be thinking about everyone whose interests in our organization (and perhaps outside it) might be affected, and any possible options for meeting those interests.

It is likely to be important to Ms. Lee that our organization provides options for dealing with conflict within our conflict management system. As mentioned above, there are likely to be compliance offices. And, like most organizations, our system has an internal grievance channel that is available to deal with formal complaints, so Ms. Lee has rights-based options available. Although Lee may have little trust in formal grievances against persons of high rank, the high rank of an (alleged) offender will not necessarily influence an investigatory procedure—people in high positions have been brought to justice in the past. However, if Lee believes that she lacks “enough” evidence, this may deter her from lodging a formal grievance. And even if more evidence is forthcoming, she may feel she will be faced with fallout afterwards.

Although she may have little trust, a rights-based option may in fact protect Ms. Lee, especially if it turns out that other people share Ms. Lee’s concerns. And a rights-based option may help to protect the interests of others, which may matter to Lee. And of course, on the other side of the picture, if the alleged offender is innocent, his or her name might get cleared, a fact that is important to a neutral observer.

Ms. Lee’s interest-based options may seem limited if she fears loss of privacy, loss of relationships—and retaliation. However, writing a factual letter to deliver privately to the alleged offender, may appeal to her, especially if she wishes to ask for a remedy. Being able to prove that she delivered such a letter, (for example by registered mail) of which she has kept and mailed herself a copy, may also add a little to “evidence.” Having more evidence might prove helpful to management, if Ms. Lee were later to need to bring a formal complaint.

Ms. Lee’s power-based options may seem risky to her. What if the apparent offender’s boss sides with the offender? What if the superior asks Ms. Lee for evidence and Ms. Lee tells him/her there isn’t any, beyond her own word, and the fact that she spoke with Ms. Dula? But there is also the possibility that Lee’s own supervisor, and the people that know her, may be a source of power for her. She may not have to face her situation alone—others may be able to support her.

Whatever options Ms. Lee chooses, we must also think about the systems implications of her complaint. Presumably we will follow up. Sooner or later there will be an opportunity to address the issues raised above, either through the immediate option chosen by Ms. Lee; or through a training program; via 360 performance evaluations, organizational surveys, and focus groups; or quite likely with permission from Ms. Lee after she is safely out of the situation.

It will be apparent that multi-issue, multi-cohort, cross-gender, cross-culture, multi-jurisdictional cases require great care. Imagine a few facts changing either way, or imagine the case in a different context, and a conflict may change or the options may change.

Organizations need to have a way to let the facts emerge, if only privately, while different actions are considered. This task is, realistically, daunting in modern organizations; many managers are very insulated. However, the complexity of the modern workplace has fortunately led to complaint systems that provide options—for care and fairness and justice—for complainants, for respondents, and also for managers.

Just “having a choice of options” seems to help people to come forward. Brian Bloch’s accompanying article illustrates an example of developing various options, how they may be used, and how they may help individuals and groups.

The existence of an Ombuds Office that is independent and neutral, and off the record, and which knows all the components of the conflict management system, may be able help people in distress take a responsible first step. The accompanying article by Mary Rowe develops these ideas in greater detail.

Click here to download the full article (pdf)


[1] http://www.ombudsassociation.org/standards/ provides the Code of Ethics and Standards of Practice for an organizational ombudsman. In these articles we use the term ombudsman for the practitioner and “Ombuds Office” for the office. Like our professional association, the IOA, we respect the use of various forms of these terms.

[2] Ibid.

Originally published in 14 Harv. Negot. L. Rev. 239 (Winter 2009).

Organizational Systems for Dealing with Conflict & Learning from Conflict

Introduction

Click here to download the full article (pdf)

Ideas about conflict are compelling topics for those of us who in work in organizations. We think about workplace justice, alternative vs. appropriate dispute resolution, and how to help leaders and teams deal effectively with the concerns and conflicts that preoccupy them. We think about organizational systems for dealing with conflict and learning from conflict. The present authors prefer this concept to the conventional term “conflict management systems” (CMS) although, for simplicity, we also use the conventional term.

It is not clear to us that all conflict can or should be “managed” — managed by whom? One of the major questions in this series of articles is: who should decide how to deal with a conflict? In particular, the Bloch, Miller and Rowe articles explore appropriate dispute resolution within an organization: who determines what is “appropriate” in this complex world, and on what basis?

The need for shared norms in complex cases. Multi-issue, multi-cohort, multi-context, cross-boundary, cross-gender, multi-ideological, multi-cultural, multi-generational, multi-law-regulation-policy conflicts are now common in organizations. Many organizations are also structurally complex. The workforce may work within virtual structures and under widely differing contractual arrangements; employees are of very unequal power, and often do not share norms and values. Organizations now must work hard and consistently if they wish to be effective in teaching values, standards, policies and rules. This work begins with setting standards.

David Miller writes that multi-cultural organizations need standards of conduct that apply to all persons in the organization; the standards should be linked to the mission of the organization; standards are essential when adhering to them is required to accomplish the mission. Miller writes that standards are required for a workforce to understand what is “appropriate” behavior and appropriate conflict management.

The need for options. Implementing standards, policies and rules is not easy in conflict management. In real life it is often ineffective to think about a complaint or conflict just in terms of its “issues,” without regard to what the stakeholders want. Different stakeholders seek different ways of dealing with a conflict: some do nothing, some leave the situation, some make matters worse, some seek formal complaint channels, and others seek informal resolution for their complaints and conflicts.

It is a common belief that different issues suggest or require certain specific methods or venues for dealing with those issues. (Think, respectively, about how to deal with criminal behavior, other illegal behavior, offenses against the organization’s policies, offenses against personal values, and the complaints people have with administrative services.) However, despite the common belief that the issue will determine the method of conflict management, in the face of an actual conflict or complaint, many employees and managers simply act in accord with their own beliefs, rather than following the apparent norms about how a given issue should be addressed.

In reality, there is no single, effective way to decide which problems should go to which conflict management options, because people so often vote with their feet. Both managers and disputants often 1) ignore a complaint or conflict, or 2) think they alone own it, and 3) may want to deal with it in ways that are different from ways that would be chosen by the other stakeholders.

New laws and standards, combined with very diverse values held by people in conflict have, therefore, led to the need for options in conflict resolution and complaint handling. Providing a variety of options in turn suggests the need for a systems approach.

A relatively simple way to think about conflict management options within a system is to define them in terms of dealing with conflict on the basis of interests, and rights, and power, (please see the Chart attached). In reality, of course, interests, rights, and power overlap to some extent, within almost all options. And, in reality, all conflict management offices use some interest-based, rights-based and power-based ideas to deal with problems. However for simplicity we will use these rubrics, in discussing elements of conflict management systems.

So, different issues and differing values lead to the need for options, and having options suggests building a system. As it happens, it is not a simple thing to develop a coherent system. There is a fundamental issue about “who owns” a conflict or a complaint. Who has the right to choose which option or options to use?

As a first example, a multi-issue, multi-cohort case may present a problem within a systems approach. A given case may seem relevant to many different offices and functions on the Chart attached. Each office might think it should “own” the case, because it appears to “own” one or another of the many issues in the case, and it provides one or more functions relevant to the case.

As a second example, supposing the individuals engaged in conflict do not take the problems to any manager or office on our Chart? Conflict managers and dispute system designers sometimes talk as if “all” disputes might surface into the system. In real life most concerns and conflicts most of the time are addressed by the individuals involved, (or these parties suffer in silence). Resolution by the parties involved may often be a good thing—think for example of a well-functioning team. However, does this mean that in real life individuals are part of a “conflict management system?” What are the implications for system design?

Design and implementation In his paper, Brian Bloch illustrates the process of designing and building a system “to deal with conflict and to learn from conflict.” He records how he added interest- and rights-based options to an organization that previously did not provide those options, in order to meet the needs of individuals and groups. (Bloch, Miller and Rowe in their articles all wryly attest to the fact that this process is often less than elegant and that there is much to learn. Conflict management systems “happen,” however much we try to design them.)

As it turns out, taking a “true” systems approach to dealing with conflict within an organization is difficult, for many theoretical and practical reasons. These articles outline some problems in conflict management system design:

• Conflict management systems are difficult for managers and employees to understand. Different managers often feel naturally attuned to one or another option in the system, but various disputants may be drawn to other options. Added to this confusion is the fact that most employees and managers do not understand all the relevant policies and procedures—let alone how each option in the system actually works. Sometimes it is not even obvious which offices would be considered part of a given CMS.

• A system must try to balance the rights and interests of the organization, of its different conflict management offices—and of all the individuals involved in a conflict. These needs are sometimes at odds with each other. (A classic dilemma of this kind is illustrated in the Case attached.)

Mary Rowe discusses the important contributions that an organizational ombudsman—a zero barrier office—offers in dealing with major dilemmas of systems that are meant to deal with conflict and learn from conflict. Indeed, the key role of the organizational ombudsman is discussed in all three of these articles on conflict management system design.


[1] http://www.ombudsassociation.org/standards/ provides the Code of Ethics and Standards of Practice for an organizational ombudsman. In these articles we use the term ombudsman for the practitioner and “Ombuds Office” for the office. Like our professional association, the IOA, we respect the use of various forms of these terms.

Managing Cultural Differences In An International Organization Conflict Management System

David Miller, Staff Ombudsman, World Health Organization

Click here to download the full article (pdf)

Conflict management requires recognition that conflict is occurring. However, often there is no such recognition. Boundaries are often violated, behaviourally or verbally, by apparent abusers, harassers or aggressors unaware of the effects of their actions. And some people perceive no constraint on their actions. Sometimes also, those who are injured are not able to understand — or find it hard to name – what has happened. They may not be able to imagine any option for response (see the accompanying Case). Conflict management therefore requires common recognition of principles, standards or codes in which conflict is characterized, and from which solutions, resolutions or remedies may be found.

In organizations founded on the engagement of all cultures and peoples — in the United Nations organizations these are “member states”— and in private or public corporations with international constituencies and offices, conflict management necessitates an architecture of principles upon which, by common assent, behavioural boundaries can be asserted and, from which, behavioural violations of those boundaries can be inferred and characterised. These principles should embody elements that persons of all cultures can recognise, understand and to which they may legitimately aspire. These principles should be reasonably achievable on an individual level. These principles should also inform and guide the various elements of a conflict management system (CMS) — see the attached Chart for examples. The principles are also necessary to enable coordination of such functions into a coherent and functional system.

In 1954, the International Civil Service Advisory Board published the “Standards of Conduct in the International Civil Service” (hereafter referred to in this and their later revision as “the Standards”), with the intention that they,

“…become an indispensable part of the culture and heritage of the [participating specialised and related agencies participating in the UN Common System and other] organizations…” (ICSC, 2002).

As described on their website[2],

The International Civil Service Commission (ICSC) is an independent expert body established by the United Nations General Assembly. Its mandate is to regulate and coordinate the conditions of service of staff in the United Nations common system, while promoting and maintaining high standards in the international civil service. The Commission is composed of fifteen members who serve in their personal capacity. They are appointed by the General Assembly for four-year terms, with due regard for broad geographical representation. The Chairman and the Vice-Chairman are full-time members and are based in New York. The full Commission meets twice a year.”

The 1954 Standards were updated and completed in 2001, following a three-year process of review in consultation with participating organizations and staff representatives and, following acceptance by the United Nations General Assembly (resolution 56/244), the Standards were then re-published in 2002.

In the preamble of the 2001 revision, it is stated that the Standards are based on the aim of the United Nations and the specialized agencies “…to save succeeding generations from the scourge of war and to enable every man, woman and child to live in dignity and freedom.” (para.1). The preamble adds that

“…international civil servants have a special calling: to serve the ideals of peace, of respect for fundamental rights, of economic and social progress, and of international cooperation. It is therefore incumbent on international civil servants to adhere to the highest standards of conduct…” (para. 2).

Among the guiding principles then explicated are those vaules

“enshrined in the United Nations organizations [that must] …guide international civil servants in all their actions: fundamental human rights, social justice, the dignity and worth of the human person and respect for the equal rights of men and women of nations great and small.” (para. 3).

Additional guiding principles include: loyalty to the vision of organizations of which the person is a part (para. 4); integrity (”…qualities such as honesty, truthfulness, impartiality and incorruptibility”) (para. 5); impartiality (paras. 8 and 9); tolerance and understanding (”…respect all persons equally, without any distinction whatsoever”) which, “…in a multicultural setting calls for a positive affirmation going well beyond passive acceptance” (para. 6); “international loyalty” (para. 7); and an “international outlook”, implying,

“…respect for the right of others to hold different points of view and follow different cultural patterns. It requires a willingness to work without bias with persons of all nationalities, religions and cultures…It requires punctilious avoidance of any expressions that could be interpreted as biased or intolerant…International civil servants should not be wedded to the attitudes, working methods or work habits of their own country or region.” (para. 13)

Although the Standards describe expectations for the conduct of international civil servants, international organizations also have internal policies determined by member states, and staff rules determined by their executive heads. These policies and rules move from general, aspirational statements — as in the Standards — to specific procedures for administrative decisions. The Standards are designed to apply equally to all staff, irrespective of grade or seniority.

Consequently, cultures and nationalities are not formally recognized in delivery of administrative decisions or the application of conflict management systems. Instead, international organizations recognize international civil servants commonly bound by the Standards and equally subject to the policies and rules of the organizations.

The Standards form a foundation of values upon which issues raised in conflict management may be assessed and addressed. The Standards provide boundaries and parameters for acceptable conduct and, because they speak to allegedly universal values (i.e., culturally non-specific values which are also the basis for common law in many countries) they act as a referent for both the construction of CMS’s and for the subsequent conduct of each of the CMS elements. The Standards are the platform for administrative decisions occurring in the context of policies and rules of each institution. These Standards may also provide parameters within which options for conflict management may be rehearsed, including within the Office of the Ombudsman.

Challenges to Implementation

i. Contractual differences. One of the signal challenges to implementation of CMS’s based on the Standards is the diversity of conditions under which people are employed within organizations, and across organizations. Differing contracts — e.g., short-term versus fixed-term, three months to five years, with or without educational and health benefits — lead to differing levels of dependence and thus very different power dynamics within disputes.

ii. Logistics. Offices in some organizations have colleagues working in different languages, and the base language varies across regions. The question of language may limit access to “being heard” at a headquarters office.

Access to internal justice mechanisms varies according to grade and seniority, simply because such considerations can determine access to information and to technology (e.g., the use of email to reach a CMS located in another time-zone).

Time zones are another challenge, e.g., if the CMS is directly reachable by telephone only at the end of a local working day and at the very start of the CMS office’s working day.

iii. Expectations of staff versus priorities of the organization. Inconsistencies may be evident, in the application of appropriate internal justice procedures or responses to demonstrated misconduct or mismanagement, according to political or programmatic considerations, or simply according to conditions on the ground at the time of the alleged incidents.

iv. Awareness of options. Staff in different locations may have very different understandings of or information about their rights in respect of access to CMS options. This includes informal options such as recourse to the Office of the Ombudsman, particularly where contractual arrangements are diverse and language may act as a barrier. Many international organizations are addressing this issue by provision of mandatory training (and, in some instances, certification) of all staff on the Standards. Hierarchy in organizations may also act as a barrier to accessing available options, e.g., where access to communications technology is at the discretion of a problematic supervisor.

v. The range of potential internal and external actors. It is axiomatic for organizations within the broader United Nations family that equity and rights-based approaches underlie our work. Following a rights-based process for dispute resolution may require the involvement of multiple partners and players. For example, in the context of the attached Case, the range of internal potential actors may include at least the following:

· Internal security services

· Human Resources department

· Chief Executive’s Office

· Legal Department

· Internal Oversight Service (equivalent to OIG)

· Health and Medical Services

· Counselling and Psychological Services

· Protocol and External Affairs Office

· Directly and indirectly affected colleagues

· Staff Association

· Ombudsman

· The Executive Board of Member States

External potential actors may include at least the following:

· National police and/or security services

· National diplomatic missions

· Hospitals and medical/health practitioners

· Government departments of member states, including, e.g., health, foreign affairs, defence, and finance

· Social organizations and cultural groups

· Private legal representatives

· The media

Consequently, questions arising for the appropriate implementation of an ethical, just and humane response to conflicts — such as may be presented in the attached Case — include the following:

· What are the legal obligations on managing the issues? (for example, diplomatic immunity and its waiver);

· What lessons from previous experiences does the organization have to help manage such situations? (for example, ensuring timely staff care and support, what precedents are involved, what led to ‘successful’ or least damaging outcomes in the past);

· How is a balance struck between the interests of the individuals involved, and those of the organization? (for example, ensuring the safety of all who may be affected, and mitigating organizational vulnerability — if, for example, the protagonists are nationally highly regarded and highly visible emissaries from an important donor country);

· How can the situation be addressed expeditiously? (considering, for example, the impact of armed conflict, of time zones, of language, of religion, multiple administrations, multiple actors, multiple cultures, multiple agendas, of committees);

· How can responses be coordinated without compromising the confidentiality of the staff involved, the independence of the Ombudsman Office, the reputations of all elements, the relevant Standards of Conduct and the law?

· How does the organization characterise and represent the issue to itself, its constituencies, and how does it demonstrate the values and culture it espouses, in doing so?

vi. The impact of culture. All parties may be cognisant of the Standards, but behaviour is interpreted through cultural lenses and these will vary considerably. At the very least, conflict management requires an Organizational Ombudsman to be sensitive to how culture may affect the perceptions and behaviour of those involved. Nevertheless, in the contexts of international organizations in the United Nations family, staff have, in a practical, work-based sense, subordinated their culture to the Standards-based values — and resulting organizational culture — of their employer. Accordingly, in the context of international organization conflict management systems, the norms of national cultures no longer constitute a defence of untoward behaviour.

How can an Organizational Ombudsman add value to a CMS in such circumstances?

As explicated in the accompanying article by Mary Rowe, an Ombudsman Office can add significant value in dealing with conflict and learning from conflict, rather than aiming simply at finding a single resolution, or containing fallout. Ombudsman interventions can help healing by enabling organizations — at an institutional level — to reassert and model core values that problem-solving or dispute resolution alone might not address. These values may — like those embodied in the Standards — reflect ineffables: dignity, genuine respect, trust, motivation, pride, to name a few.

Indeed, by their adoption by international organizations under the United Nations family umbrella, the Standards form a foundation of values, and sets boundaries for acceptable behaviour. This platform enables Organizational Ombudsmen to refer to those values as well as to the policies and rules governing organizational conduct. Each office of the CMS suggested in the list of “Some Conflict Management Offices” in the attached Chart may use the same platform. And, as Rowe’s article highlights, Organizational Ombudsmen may help the other offices to work for ethical, just and timely conflict management.

But an additional and crucial consideration is whether the organization has the maturity genuinely to integrate an Ombudsman function genuinely within its structures. Will it be able to use an Ombudsman office in addressing situations that may result — in the short term — in possibly uncomfortable levels of necessary self-reflection? Organizational Ombudsmen have significant added value in such circumstances — and they may also create the circumstances in which the organization can effectively respond — because they:

· Work on the basis of International Ombudsman Association professional standards of practice and ethical principles which give priority to independence, neutrality and impartiality, confidentiality and informality[3],[4]

· can facilitate informal responses

· are truth-tellers to the organizations

· have principles for conduct and practice that protect those we serve (see below)

· can keep the temperature low for all parties

· can work with all the above-named, internal actors equally and alike.

Additional Observations

Conflict management systems are not linear, either in design or in practice — most usually evolve through trial-and-error and/or as circumstances dictate. It is not uncommon to hear Organizational Ombudsmen and other experienced practitioners in conflict management confess that many of their tools are constructed on an ad-hoc basis.

“Designing” a system to deal with conflict therefore has an inherent contradiction — that much of what causes conflict is novel. Dispute system design, while having much to learn from a wide diversity of traditions and bodies of research scholarship in fields of anthropology, psychology, sociology, theology, and law (to name but a few) continues to fascinate because it is constantly being challenged by new experience. It may fittingly be said that we are in the early adolescence of CMS design, in all sectors.

In addition, in implementing conflict management systems in many international organizational settings, a number of key issues are still the subject of exploration and experimentation:

  • How to establish accountability for CMS, and Ombudsman practice;
  • How to implement evaluation of efficacy and impact without compromising independence;
  • How to identify the universalities in practice, and to assert standards in implementing these;
  • How to define and assert boundaries with key partners in CMS’s;
  • How to demonstrate that our constituencies can trust us;
  • How to decide who makes the decisions about all of the above — again, without compromising independence, neutrality, confidentiality, and, for the Ombudsman, informality.


[1] What is an International Organization? For the purposes of this paper, it is an organization that operates in multiple national, cultural and geographical settings, or in a setting where people from multiple cultures work together, e.g., an organization that has an internationally-recruited workforce operating in one country. In this sense many major universities have become international organizations.

2 http://icsc.un.org/

[3] International Ombudsman Association Code of Ethics, www.ombudsassociation.org Rev. 1 / 07

[4] International Ombudsman Association Standards of Practice, www.ombudsassociation.org Rev. 12 / 06

Creating a Faith-Based Conflict Management System

Brian Bloch

Download the full article (pdf)

Every organization has to deal with conflicts. Many deal with them on an ad hoc basis without articulating a standard way to process conflicts.  Few have gone to the extent of designing a conflict management system (CMS).  Faith-based organizations (FBOs) are no exception.  While many FBOs have well-developed programs for conciliation, mediation, and scripture-based peacemaking, very few religious communities have taken advantage of the CMS approach to their internal conflicts.  I’ve had the privilege of attempting to create a CMS in conjunction with the International Society for Krishna Consciousness (ISKCON).
The first part of this paper describes the previous method of dispute handling in ISKCON, the shortcomings of which served as an impetus to create a CMS.  It also covers the various steps taken to create the CMS, the components of the CMS, the special role of the ombudsman, and the challenges encountered.  Part Two focuses on the nature of disputes and their causes.  A subsection of Part Two samples one particular case, that of the role of women in ISKCON.  While this paper concentrates on ISKCON, both because of my familiarity with the organization and my inability to find other FBOs taking a CMS approach, I try whenever possible to apply the principles highlighted here to FBOs in general.

Part One—Creating a Conflict Management System in a Faith-Based Organization
ISKCON’s Pre-CMS History of Conflict-Handling
During the life of its founder, Swami Prabhupada, ISKCON’s conflicts were handled mainly through power-based decisions, often with reference to Vaishnava  theology.  In spite of Prabhupada’s many requests to his disciples to cooperate and avoid conflict, disputes invariably arose.  Major conflicts were handled by Prabhupada himself, while lesser conflicts were settled by members of the Governing Body Commission (GBC—the highest management body) or by ISKCON’s middle management (temple presidents).  After Prabhupada’s death in 1977, ISKCON struggled to solve its conflicts, primarily because the organization had no developed mechanism for conflict management.  Some of the leaders intuitively made interest-based attempts to stave off or contain conflict (without the language to name what they were doing), but power-based decisions by GBC members and temple presidents remained the rule.  Rights-based approaches were rare.  Alternative dispute resolution was unknown in ISKCON at that time.  Jennifer Lynch, Q.C. writes about such a situation: “Often those in positions of power provide no options whatsoever for dealing with conflict—the ‘like it or lump it’ approach that leaves conflict festering or induces managers and employees to quit.”  With apostasy rates rising among older members, ISKCON struggled to find a balance between individuals’ needs and the needs of the otherwise growing organization, and between mercy and justice.
The authority structure Prabhupada set in place remained strong after his death, and power-based decisions leaned firmly toward a top-down, justice-over-mercy approach.  Leaders emphasized the organization’s needs over the needs of individual members, and rules were enforced firmly.  It was also common for some or all of the rank and file members to be excluded from the decision-making process.
But as the years passed, the leaders began to mature.  They were no longer twenty-somethings but had fully entered the adult world, and with their increased maturity they began to perceive the shortcomings in how they had been dealing with disputes.  They also began to perceive how debilitating it is to deal with conflict without a structure or plan.  In 2001 I asked the thirty-eight GBC members, “How many of you spend 25% of your time dealing with conflict?” Nearly all of them raised their hands.  I continued to ask the same question, raising the percentage each time.  There were still hands showing at 50%.
The time was ripe to introduce a conflict management system.

Impetuses to Create a CMS
“Organizations do not set in motion a process of wholesale shift to new systems unless there is substantial dissatisfaction with the old.”  SPIDR’s Guidelines for the Design of Integrated Conflict Management Systems within Organizations states that the “…four causal factors that act as catalysts for the design of an integrated conflict management system are culture, cost, crisis, and compliance.”  It is unlikely that the authors of the SPIDR document were thinking of organizations like ISKCON—a volunteer religious community—when writing these guidelines, yet this excerpt from their report covers the primary reasons I proposed to look into dispute resolution in ISKCON.

Cost
My initial impetus for considering alternative dispute resolution in ISKCON was cost.  The SPIDR report describes the cost factor: “The organization is incurring heavy costs from its current disputes and from its current dispute resolution processes (or lack of them).  Direct costs include costs of litigating cases externally and processing them internally.  Indirect costs include loss of personnel through sick leave or early retirement, loss of personnel to competitors, the costs of new employee recruitment, loss of productivity and opportunity, bad publicity, petty sabotage, waste, theft of intellectual property, increased insurance claims and fees, and customer dissatisfaction or customer loss.”
ISKCON was spending enormous amounts of time on conflict, and this loss was compounded by poor outcomes. ISKCON was also paying the price of seeing a number of its members form splinter groups, partially in response to how it was dealing with conflict, especially with those who went on to become the leaders of these splinter groups.

Crisis
I was also driven to create a CMS because of the crisis ISKCON was facing at the time.  This crisis was not simply a particular event but the culmination of a number of small shocks such as the genesis of splinter groups, moral lapses amongst leaders, and financial shortfalls.  It occurred to me that there must be better ways to discipline and manage ISKCON’s members, especially when they had conflicts with leaders.  It was common for those who had been disciplined to feel scapegoated; most felt they had been treated roughly and without concern for their personal needs. Many of these individuals left ISKCON.
I also noticed that few interpersonal disputes were ever fully resolved.  Splinter groups were often populated by those who felt mistreated, and the members of these groups clashed repeatedly with ISKCON’s core members.  Lawsuits ensued, and splinter groups worldwide canvassed ISKCON members to join their ranks.

Culture
When I read the following passage in The Argument Culture by Deborah Tannen, I thought it offered insight into ISKCON’s conflict culture: “… conflicts can sometimes be resolved without confrontational tactics, but current conventional wisdom often devalues less confrontational tactics even if they work well, favoring more aggressive strategies even if they get less favorable results. It’s as if we value a fight for its own sake, not for its effectiveness in resolving disputes.”
If ISKCON could find a healthy way to deal with conflict it could influence the group’s overall culture.  The SPIDR report describes this factor: “Efforts to effect a cultural transformation have stalled or failed; the organization’s internal culture is out of alignment with its mission and core values; the organization’s culture is out of alignment with its external services.”   ISKCON’s teachings of compassion, equanimity, peacefulness, and equality often didn’t match the manner in which conflicts were dealt with or justice administered.  I hoped to align ISKCON’s approach to conflict resolution more closely with its espoused values.

Finding the Champion
The SPIDR report states:
At least one senior person must be a visionary who champions the cause of creating a conflict-competent culture through developing and maintaining an integrated conflict management system.  The champion’s passion inspires others to act. It is this ability to connect others to a vision that often drives the success of a program.  Champions are trailblazers who build an integrated conflict management system piece by piece—never losing sight of the difficulty of creating change.  They are able to “grow” programs that work, abandon programs that are struggling, and, perhaps most important, identify areas of new opportunity.  Champions must be great innovators and good marketers of their ideas, for without effective communication, the “flame” dies.

For a few months I pondered how to introduce effective conflict resolution into ISKCON while addressing the hesitations some leaders had voiced.  I hadn’t read the above quote at that time, but I knew I needed a champion.  I wondered if I could do this work alone.
In June 2002 I was introduced to Arnold Zack, a renowned mediator and arbitrator.  After first checking with theology and sociology professors to assure himself that ISKCON was an authentic religious tradition rather than a new cult, he wholeheartedly embraced the idea of introducing ISKCON to conflict resolution.  He and I exchanged over a thousand e-mails between June 2002 and June 2003 planning this introduction.  He was passionate about the work.  He told me it was one of the most significant efforts of his career.  After much planning and discussion, he flew to India to make a presentation at the annual meeting of the GBC body on the implementation of what would later become ISKCON’s CMS, ISKCONResolve.  In this presentation, he addressed the benefits the GBC members would derive from establishing a conflict management program, and he was convincing and humorous—the GBC members enjoyed his presentation.  It was also the first formal presentation made to the GBC by someone who was not a member of ISKCON.
Here is the GBC’s resolution, passed unanimously, after his presentation:
Resolution 302/2002. Mediation and Ombuds Services in ISKCON
Whereas, The GBC Body seeks to demonstrate its interest in the concerns of ISKCON devotees, and seeks to encourage the timely voluntary resolution of disputes within ISKCON;
Whereas, international organizations almost universally provide a system for prompt resolution of internal disputes;
Whereas, ombudsmen provide an effective and confidential means of addressing individual concerns with an organization;
Whereas, voluntary mediation undertaken by two disputant parties with the help of a trained mediator is proven to resolve interpersonal disputes to the mutual satisfaction of the disputants;
[GUIDELINE] Resolved, That the GBC Body announces their strong support for establishment of a voluntary dispute resolution system to facilitate the resolution of ISKCON members’ concerns.
To this end the GBC Body urges regions and local temples to establish regional based ombuds and mediation systems.
Members of the GBC Body pledge to support the development of these structures and to be responsive to the concerns of members brought to their attention through these processes.
[ACTION ORDER] It is further resolved, That a subcommittee of Brian Bloch and Arnold M Zack shall coordinate these efforts in ISKCON on behalf of the GBC Body.

With champions in place—both inside and outside of ISKCON—the components of ISKCONResolve started to develop.

Building ISKCONResolve—Adding the Components
Nearly all organizations that venture into establishing a CMS already have elements of a conflict resolution procedure in place.  Back in America shortly after this resolution was passed, Zack introduced me to Mary Rowe.  Rowe has been the ombudsperson at the Massachusetts Institute of Technology since 1973.  She believes that no one person can change an organization—instead one needs a systems approach.  In the attached chart “Analyzing Your Conflict Management System” she lists the many functions that may be needed to assist a person who is experiencing difficulty, and at least thirty-eight offices that might exist in a corporation, agency, or university to handle complaints.   Outside of the GBC members and the temple presidents, ISKCON had none of these offices and few of these functions in place. I saw this as an advantage; it left me free to create a CMS from scratch.
Lipsky et al state: “Implementing workplace systems requires a well-planned multistep process that takes place over several [six] phases.”  ISKCONResolve’s implementation followed the general direction of these phases, but in a simplified and far less costly way.  Below is a description of the components gradually added to ISKCON’s CMS:

Beginning with Mediation and the Ombuds Office
Our first priority was to introduce interest-based options into ISKCON’s way of dealing with conflicts.  ISKCON’s first mediator training took place in the summer of 2002.  Three of those attendees took further training and subsequently went on to train over 500 ISKCON members on six continents in basic mediation.
Lipsky et al discuss the choices CMS designers have in terms of using internal and/or external processes and resources.  ISKCONResolve started and continues to use primarily internal processes.  Though recent co-mediations that included one non-ISKCON mediator have proven successful, the mediators are generally ISKCON members and are mediating pro bono.
In early 2003 I became a member of the International Ombudsman Association (IOA; then, TOA—The Ombudsman Association).  Two ISKCON colleagues and I attended IOA’s Ombuds 101 course in Boston.  Shortly afterwards, we established ISKCON’s first ombuds office and, after a slow start, began to receive visitors.
ISKCON has centers in 103 countries with a membership of well over one million.  Yet the core membership is relatively small (perhaps 40,000), and there are probably only a hundred or so well-known leaders among this core group.  It was this small group of leaders who first took advantage of the ombuds office and mediation process, having heard about the project through the GBC meetings.  They referred disputants to us and often expressed how liberated they felt being able to refer the conflicts to trained, third-party persons.  These referrals told others of their experience either in mediation or with the ombuds office (or both), and gradually our existence became known via word-of-mouth.
Each year, the number of mediations and ombuds visitors has increased.  I have not been able to track every mediation since many have taken place without ISKCONResolve’s notice, but the number of ombuds visitors has gone from fifty in our first year of operation to approximately 400 for 2007.  This statistic doesn’t reveal that about twenty-five percent of these cases were high-profile, cross-cultural, multi-issue, cross-generational, involving multiple jurisdictions, or cases with multiple stakeholders.  Such cases can take hundreds of hours of an ombud’s time.  It also doesn’t reveal that these figures grew without a systematic attempt to advertise the office to ISKCON’s general members.

Facilitation, Dialogue, Negotiation, and Conflict Assessment/Analysis
In developing the CMS, it struck me how group facilitation could address, in a mutually respectful atmosphere, a number of the larger conflicts ISKCON faces, such as the role of women in leadership, the cultural divide between ISKCON in the West and in the East (particularly in India), and the role of gurus after Prabhupada’s death.   The service has evolved into providing strategic planning facilitation on local, regional, and (most recently) international bases.  This development has benefited ISKCONResolve as ISKCON members are now turning to us for positive, proactive relationship- and project-building.
The next step was to add dialogue to the services ISKCONResolve offered.  I noticed that ISKCON members supported the concept of mediation but hesitated to participate in the process.  They reacted to the suggestion “Why don’t you have a mediation?” the way people react to a suggestion that they see a mental health professional.  I have also discovered that in some cases people aren’t ready for a formal mediation, especially with the possibility of ending up with a signed agreement as a necessary part of the process.  They may agree to talk, but they may not want further commitment.
Finally, I decided that offering the service of assessing larger conflicts was another important service ISKCONResolve could offer.  Since starting this service, models by Dugan, Lederach, Curle, Leas, Susskind and Thomas-Larmer, and Docherty have been applied to ISKCON conflicts.  I’ve found Dugan’s “Nested Theory of Conflict” model especially helpful.  In using that model, the facilitator helps disputants look at four levels of influence on a conflict: the issues, the relationships, the sub-systems, and the systems.  The model encourages the disputants to “go to the balcony” and look at the dispute more objectively, taking into consideration a number of factors they may not have previously considered.

The Need for a Rights-Based Option: Adding Arbitration
While the above-mentioned interest-based options were operating well, it was becoming clear that not all conflicts could be dealt with using such an approach.  Rowe estimates that 5–25% of a given population will favor formal, retributive justice as their preferred method of solving disputes.  My experience in ombudsing and arranging mediations supported Rowe’s statement.  Some disputants were simply not comfortable with interest-based attempts.  They classified them as “touchy-feely” or “new-age” concoctions.  A few of ISKCON’s leaders were especially uncomfortable with the thought of opening a dialogue with subordinates.  It was evident that a rights-based option was needed.
But could a rights-based system be introduced without rights being formally spelled out?  ISKCON was (and still is) in the midst of writing a constitution, but it hasn’t been made law.  The ISKCON law book spells out some rights and responsibilities, but few of the leaders and almost none of the general members refer to it on a regular basis.  I asked Rowe: “Can an organization have a rights-based, adjudicatory process if it has not finalized a code of rules/ laws?”  Rowe replied, “Wonderful question … Yes I think so if there is a credible group making the decisions. Remember we have: criminal offenses, illegal but not criminal, offenses against the organization’s policies, offenses against values.  Any group seen as credible can make decisions along any of these lines.  And so can a monarch if he or she is seen as credible, e.g., your Founder. The key will be ‘seen as credible.’”
Since introducing the arbitration option only a few arbitrations have taken place. Significantly, however, many opportunities to take advantage of the option have been offered.  The very nature of arbitration, which Lipsky et al list as a concern , has had a positive effect on ISKCONResolve.  The offer of arbitration proved to be a WATNA  for disputants.  When presented with the options available to them, disputants generally remarked that they preferred to maintain control of the process and therefore chose an interest-based approach.
Having a rights-based mechanism in place has nonetheless been invaluable.  In addition to its WATNA effect, arbitration assures disputants that if interests-based attempts fail, there is another process available; they are not forced to surrender to a power-based decision.  It also addresses the mindset of those who are more comfortable with a formal process.  And, finally, the availability of arbitration provides leaders with an alternative to having to make power-based decisions.

ISKCONResolve—A CMS
By adding arbitration, ISKCONResolve now had elements of interests, rights, and power in place.  By making this addition I also started to sense how the three complement each other.  They are not separate units without overlap; rather, they represent a flow of options for both general members and for the leadership.  Having the options of power and rights has made interests more attractive.  The availability of interests also lines up with the culture ISKCON wants to create. “Rights” satisfies 5–25% of the general members, and the lowered emphasis on power decisions makes the rare power decisions that do occur more emphatic.
ISKCONResolve could now offer choices as to how members wanted their concerns addressed.  Preference was given to interests-based approaches , but people could “loop forward” to rights and/or power-based approaches  , or, after having chosen rights or power, they could “loop back” to interests.
Lynch writes: “When organizations go beyond ad hoc, case-by-case dispute resolution and turn their focus to systematically integrating all of these approaches into their day-to-day business, plus add processes that shift their conflict culture toward prevention, the new phenomenon is called an ‘Integrated Conflict Management System.’”
Establishing this CMS has required educating members in new ways of dealing with conflicts.  I have found myself talking constantly about “interests, rights, and power” in public presentations, one-on-one meetings with ombuds visitors, and in e-mails.  Leaders have wanted to know, “Can I still just make a decision on a matter without considering this whole CMS process?” My reply: “Certainly.  ISKCONResolve is not designed to take away the legitimate authority  of your position.  That was established by Prabhupada.  Rather, we are here to lessen your burden and help you serve the members in your area of responsibility when some problem arises.  You can refer members to our Ombuds office, suggest to them that they consider mediation and our other services, and you can take advantage of our services yourself should you find the need.  We help leaders lead by helping them deal with conflicts in a healthy way and by unburdening them so that they can get on with their mission.  We also serve them by establishing a fair process when complaints against them are lodged.”

The Special Role of the Ombudsman
In the companion article, Rowe presents key roles an ombudsman can play in a CMS.  Certainly, the key figure in ISKCON’s CMS is the ombuds.  The ombuds acts as an informal process facilitator , mediation encourager and arranger; generally they are the first point of contact, a mediator, an option provider, an information giver, a referrer, a listening ear, an arbitration arranger, a communicator between rank and file and leadership, a systems analyzer, a trainer of conflict competence, a listener, a provider of hope, an occasional source of humor, and an informal investigator.  These duties may go beyond the standard ones prescribed to an organizational ombuds, but due to funding restraints it is a practical job description, and doesn’t transgress the standards of practice as outlined by the International Ombudsman Association.
The ombuds in ISKCONResolve is the glue that keeps the program together.  I originally compared the organizational ombuds to a basketball point guard who calls the plays for the team.  I mentioned this to Mary Rowe and Craig Mousin from DePaul University.  They both commented how I should be careful not to consider the ombuds more than he or she is.  Rowe wrote: “Is this a ‘normal’ OO like me or is it a superhero?  The issue of Helping People to Help Themselves (HPHT) is a big one: give a fish?  Or teach how to fish?  We should probably not so much be giving a fish but always if possible supporting others to learn how to fish.”  I have since adjusted my metaphor.  The ISKCONResolve ombuds is more like a pathfinder.  He or she offers visitors a map by which they can decide what direction they wish to go.  And, at the visitor’s request, the ombuds may also suggest options.

Need Religion?
I had wondered if ISKCON should set up a conflict management system that basically leaves religion and theology at the door.  ISKCON’s members’ lives are steeped in spiritual practice and philosophical thought, so what need is there to include such considerations in a conflict management system?  I’m wary of conflict transformation becoming the latest fad that might distract from ISKCON’s core practices, and thus out of respect for the theology, I have often thought to leave it out of ISKCONResolve.
On the other hand, I have also wondered, “What’s the use of the theology if it doesn’t guide or make an impact on our daily lives?”  While considering this subject I read Halverstadt’s Managing Church Conflict.  He suggests that conflicts should be dealt with ultimately in a Christian manner, which is encapsulated in the concept of shalom: “Shalom is a particular state of social existence.  It is a state of existence where the claims and needs of all that is are satisfied; where there is a relationship of communion between God and humans and nature, where there is fulfillment for all creation.”  He says that this shalom is what ultimately makes a Christian fight “Christian.”
Halverstadt goes on to say that he uses “Managing” in his book’s title instead of “Resolving” because peacemakers can’t “force unwilling parties to make peace. If an Almighty God stands at the doors of human hearts knocking (Rev. 3:20), how should Christians presume to do otherwise?”  This relationship between the disputant, the peacemaker, and God is also at the heart of a spiritual approach to conflict resolution in ISKCON.  Perhaps the most well-known verse in the Bhagavad-gita says, “Do your duty, but do not be attached to the results of your activities.”
Faced with the choice of whether or not to bring spirituality into ISKCONResolve’s work I recalled a conversation I had had with Mary Rowe about mediation styles.  I had suggested to her that Bush and Fogler’s Transformational Mediation was best suited for ISKCON mediations.  She countered: “What if the disputants want an evaluative mediation?  What if they don’t want their relationship transformed?  Could this happen?  And if it does: who should decide, you or them?”   I ended up applying Rowe’s same logic to this question of including theology in ISKCONResolve.  I chose in the end to flavor ISKCONResolve trainings with a “Krishna” perspective.  Presentations are sprinkled with scripture and a devotional worldview, but not at the expense of standard training and discussing best practices.  Trainees are instructed to be sensitive not to transgress ISKCON’s spiritual principles in their ISKCONResolve work, but they are also trained not to force a spiritual angle on disputants who prefer not to go in that direction.

Challenges
Geographic Spread
ISKCON’s demographics have created one of the greatest challenges to establishing ISKCONResolve.  Core members are dispersed in 103 countries and conflicts are often inter-continental.  Bringing parties together is time-consuming and costly.

Resources
Resources are also problematic.  Religious organizations that are congregationally-based often find it difficult to raise funds for national, not to mention of international, value-added projects such as a CMS.

Succession Planning
This also points to the challenge of succession planning.  CMS’s don’t only need champions—they need a succession of champions.

Unemployed Mediators
Well over 500 members took the basic mediation training course.  Fewer than 100 of them have formally mediated.

Cultural Diversity
ISKCON is a global organization.  In many places in the West it caters to a large Indian diaspora that pray and serve side by side with members from the host culture.  While there has been considerable success in mediating across cultural differences, it remains a challenge especially suited for the experienced mediators and ombudsmen.

Inability To Reach All ISKCON Members
Presently ISKCONResolve advertises its services mainly through word-of-mouth.  I have made a number of presentations at major international festivals, but I find most visitors to the ombuds office find out about us through others.

Insufficient Data
One of my own personal weaknesses has been not putting enough time into documenting the work ISKCONResolve has done to date.  I have information on the vast majority of ombuds cases, but this information is just starting to be systematically compiled.  (The data are, of course, devoid of names and specifics that would point to any particular individuals.)

The Future
In considering ISKCONResolve’s future, some of Bingham’s six points, under “Lessons Learned” in her REDRESS report, come to mind.   She says, “Design the dispute resolution system to maximize participation,” and then “train, train, train.”   These two go well together.  I want to train ombuds on every continent and in a number of major communities.  Also, I want to send neophyte mediators to co-mediate with the more experienced so that we can gradually expand the number of qualified mediators.  With more mediators and ombuds in place, I plan to advertise ISKCONResolve’s services widely.  This is another of Bingham’s points: “Get the word out.”

Part Two—Looking at Conflicts and their Causes in FBOs
A Sampling of Cases
ISKCONResolve’s ombuds have heard a full spectrum of disputes since the office’s inception in 2002.  An extensive study of the data from these visitors is in progress.  Below is a sampling of the kinds of concerns the ombuds office deals with:

•    A leader pokes fun at an outreach program considered sacrosanct by other elders.
•    Two teachers in a school argue over the amount and nature of the religious coursework offered in a school.
•    Egalitarians and complementarians  enter into an Internet battle, complete with on-line petitions, regarding the role of women in leadership.
•    Department heads differ over the allocations of funds—and use theology to explain why their particular project deserves funding over the other project.
•    A congregation member questions whether a leader is teaching the theology properly.
•    A young woman questions whether one of the renunciants (sannyasis) is observing his vows properly.
•    Numerous members of a particular country get involved in a conflict over the scriptural translation of one word into their native language.
•    A member wishes to see ISKCON build bridges with one of the prominent splinter groups.
•    A group questions the architectural design of a temple and wishes to see if an adjustment can be considered.
•    Some members want to emphasize mercy and God’s forgiveness, while others say the organization needs to emphasize transparency and accountability by firmly sanctioning those who perform misdeeds.

Causes of Conflicts
In his book, The Mediation Process, Christopher Moore outlines the main causes of conflict :
(1)    Value conflicts: caused by parties having different criteria to evaluate ideas, or by different lifestyles, ideologies, or religions.
(2)    Relationship conflicts: caused by strong emotions, misperceptions, miscommunications, and regular, negative interactions.
(3)    Data conflicts: caused by a lack of information, different interpretations of data, and different views on what is relevant.
(4)    Interest conflicts: caused by competition over substantive interests, procedural interests, or psychological interests.
(5)    Structural conflicts: caused by destructive patterns of behaviour, unequal control and ownership of resources, unequal power and authority, time constraints, and geographical/environmental factors that hinder cooperation.

Naturally, most of ISKCONResolve’s cases fall into the above categories.  In Managing Church Conflict, Hugh F. Halverstadt adds color and depth to Moore’s list by citing causes of conflict particular to church settings.   Halverstadt’s first point: church conflicts are intense because we have attached our commitment and faith to them.  He writes: “For one thing, parties’ core identities are at risk in church conflicts.  Spiritual commitments and faith understandings are highly inflammable because they are central to one’s psychological identity.  When Christians differ over beliefs or commitments, they may question or even condemn one another’s spirituality or character.  Their self-esteem is on the line.”
I’ve had similar experiences working with ISKCON members.  Perhaps more than the average churchgoer, ISKCON members make sacrifices and major lifestyle changes  when taking to Krishna consciousness.  All members, but especially Western converts, change how they eat, sleep, dress, and speak; they develop new friendships and frequently relinquish the old; and they develop a new set of life aspirations.  To become devotees they often adopt a drastically different outlook on life from the one with which they were raised.  They invest a lot of themselves in becoming Krishna’s devotee, and thus if aspects of their core identity are brought into question by someone with a different point of view—especially someone in their own ranks—conflict often results.
There are a number of factors that influence a devotee’s ‘take’ on Krishna consciousness.  The first is cultural diversity.  While there are ISKCON centers around the world that afford a basic uniformity of theology and practices, the host cultures each bring in much variety.  Other significant differences in “takes” are caused by initial training in Krishna consciousness, an individual’s level of adherence, his or her socio-economic status, choice of friends, habits, and more.  Thus although all are members of ISKCON, there is variety in how members perceive, experience, teach, and practice Krishna consciousness.
Understanding how that variety manifests in any FBO is an essential tool in analyzing conflicts and coping with the confusion those conflicts create.  There is a popular Sanskrit saying, atmavan manyate jagat, “I think like this, so the whole world must also think in the same way.”  Ross and Ward of Stanford University give a detailed outline of a similar concept.   They describe the concept of “naïve realism” as follows:
(1)    “That I see entities and events as they are in objective reality, and that my social attitudes, beliefs, preferences, priorities, and the like follow from a relatively dispassionate, unbiased and essentially ‘unmediated’ apprehension of the information or evidence at hand;”
(2)    “That other rational social perceivers generally will share my reactions, behaviour and opinions—provided they have had access to the same information that gave rise to my views, and provided that they too have processed that information in a reasonably thoughtful, and open-minded fashion;”
(3)    “That the failure of a given individual or group to share my views arises from one of three possible sources:
(a)    The individual or group in question may have been exposed to a different sample of information than I was (in which case, provided that the other party is reasonable and open-minded, the sharing or pooling of information should lead us to reach an agreement);
(b)    The individual or group in question may be lazy, irrational, or otherwise unable or unwilling to proceed in a normative fashion from objective evidence to reasonable conclusions; or
(c)    The individual or group in question may be biased (either in interpreting the evidence or in proceeding from evidence to conclusions) by ideology, self-interest, or some other distorting personal influence.”
If we look at Moore’s five causes of conflict it’s reasonable to say that naive realism can play a part in nearly all of them.  We see the world differently from others, and we are often willing to enter into a dispute because of that. Members of faith-based organizations are no exception.
Halverstadt offers unclear job descriptions as a second factor that stimulates conflict in a church setting: “…church conflicts occur in voluntary institutions whose structures and processes permit and even entice unaccountable uses of power.”  Not only is there power that is not accountable to anyone, but power-based decisions have a weaker status in FBOs that are comprised primarily of volunteers.  Especially in FBOs that don’t hold membership in the particular organization as a requirement for salvation, volunteers can easily join another church or denomination if they feel mistreated, ignored, or they disagree with a power-based decision.  This reality makes interest-based approaches all the more attractive to the FBO’s leadership who are able to recognize this dynamic.

An Example: The Issue Surrounding the Role of Women
What is the role of women in ISKCON?  Can women take leadership positions?  Can they be gurus?  Or should they play a complementary role to men as pious wives and mothers protected by their fathers in youth, their husbands in marriage, and their grown sons in old age as was practiced for centuries in traditional Indian culture?  Much of the contention in this conflict centers on hermeneutics: how ISKCON should interpret both the scriptures and Prabhupada’s comments on them.  What constitutes an unchangeable spiritual principle?  What constitutes a detail, a time-and-place attempt to apply a principle that can be changed when time and place differ?  Are the cultural varnashrama  considerations a principle or a detail?  What is to be done when two parties emphasize different and apparently opposing principles?
Egalitarians emphasize the oneness of all souls and believe that bodily differences are of secondary importance.  Bhakti, loving devotion to God, or Krishna, is a function of the soul; it has nothing to do with the external body one happens to inhabit.  Men aren’t men eternally, nor are women eternally women.  Egalitarians believe we should be evolved enough to “get off the bodily concept of life” and respect each other as souls, as eternal servants of Krishna.  We should be careful not to allow mundane concepts to enter a spiritual society.  Egalitarians quote passages from Prabhupada’s letters and writings like these:

Regarding lecturing by women devotees: I have informed you that in the service of the Lord there is no distinction of caste, or creed, color or sex…

Sometimes jealous persons [from India] criticize the Krishna Consciousness movement because it engages equally both men and women in distribution of love of Godhead. Not knowing that men and women in countries like Europe and America mix very freely, these fools and rascals criticize the boys and girls in Krishna Consciousness for intermingling. But these rascals should consider that one cannot suddenly change a community’s social customs. However, since both men and women are being trained to become preachers those women are not ordinary women but are as good as their brothers who are preaching Krishna Consciousness. Therefore it is a principle that a preacher must strictly follow the rules and regulations laid down in the sastras yet at the same time devise a means by which the preaching work to reclaim the fallen may go with full force.

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The complementarians protest the growing acceptance of a “feminist” agenda in ISKCON.  They fear the creeping in of a materialistic, left-wing mindset that runs contrary to ISKCON’s stated goals.  ISKCON, which is based on an ancient culture, is, they say, being influenced by modern, materialistic considerations that run contrary to the varnashrama ideal that ISKCON is meant to establish.  While they certainly accept the philosophical point that “we are not these bodies,” they maintain that the varnashrama social norms are an important vehicle for attaining the spiritual platform.  They also feel that without the support of this social model, we will by default embrace the culture of Western hedonism, a culture that will not support our spiritual aspirations.  They cite scripture and Prabhupada to support their points:
A chaste woman should not be greedy, but satisfied in all circumstances. She must be very expert in handling household affairs and should be fully conversant with religious principles. She should speak pleasingly and truthfully and should be very careful and always clean and pure. Thus a chaste woman should engage with affection in the service of a husband who is not fallen.

Women need to be protected by men. A woman should be cared for by her father in her childhood, by her husband in her youth and by her grown sons in her old age.

The Woman’s Issue and the CMS
The topic “The Role of Women in ISKCON” has been growing in importance over the last twenty-five years.  This controversy has been fueled in part by key developments in ISKCON, including greater numbers of women in leadership positions on one hand and the exponential growth of Indian influence in the world of ISKCON on the other.  ISKCON has grown greatly in India and the Indian diaspora have been becoming more involved in ISKCON temples around the globe.  There are strong emotions on both sides of the issue.  In 2000, ISKCON’s Governing Body Commission (GBC) passed a resolution apologizing for devaluing women in the past, and stating that women must be granted equal opportunity in all ISKCON centers.  At the time, members of ISKCON Indian Continental Committee (ICC) wrote a complaint to the GBC expressing that the resolution took into account neither India’s traditional culture and the need to respect it, nor scriptural statements.
The GBC executive committee preferred an interest-based approach to deal with this conflict.  They foresaw the conflict continuing should a power-based decision (achieved either by accepting or rejecting the ICC’s proposed legislation) be taken.  ISKCONResolve was called on to facilitate a dialogue between six members of the ICC and six members chosen by the Women’s Ministry. Topics included:
•    Balancing tradition with changing times
•    What scripture has to say on this subject
•    How Prabhupada dealt with women’s roles when he was present, including whether things changed while he was present or developed into a status quo, and what principles he based his actions on
•    How ISKCON’s attitudes toward women have developed since 1977 (the year Prabhupada passed away)
•    East vs. West and how India is becoming more like the West every day
•    Social considerations vs. spiritual truths and the relative importance of the two in ISKCON members’ lives
•    Areas of agreement and disagreement
•     “Where do we go from here?”

After three days of dialogue, participants agreed on these points:

1.    Two members of the Women’s Ministry were invited to make a presentation and hold a discussion at the next ICC meeting.
2.    Ongoing written exchanges could start between the Women’s Ministry and the ICC to discuss specific win/win scenarios.
3.    A selected member from each group would write a paper about the deeper issue of reconciling the different moods and statements Prabhupada made about tradition and its modern application.
4.    A list of what both parties agree on would be made public.
5.    To do all of this, a safe environment would be necessary.

In some FBOs, the “role of women” issue was dealt with and decided on years ago.  In Christian denominations like the Anglican Church and the Roman Catholic Church, as well as with some Muslim, Jewish and other FBOs, it is still a pivotal topic today.  The above dialogue did not bring closure to this issue in ISKCON.  In fact, follow-up has been weak, and only now, several years later, is there talk about resuscitating the discussions.  Yet despite their imperfections I feel such collaborative efforts have a cumulative effect.  Participants experience the positive effects of both being able to air their views as well as to hear other viewpoints with clarity and respect.  They in turn tell others, and when the need arises, more turn to the various components of the CMS (especially the interest-based ones) to deal with their conflicts.

Conclusion
ISKCONResolve is a work in progress.  It requires much improvement and will certainly undergo further change as it adapts to the needs of its constituents.  Still, I hope that its preliminary success will encourage other FBOs to consider applying the principles of Conflict Management Systems to their communities.  Many FBOs already have the components of a CMS, and I feel organizing and systemizing those components by creating a CMS will multiply an FBO’s ability to address conflict manifold.  Equally, if not more importantly, a well-crafted CMS can impact the ethos of an organization.  How an FBO treats its members, and particularly how it helps them in times of conflict, indicates to members the degree to which the organization is concerned about them.  When people feel cared for in their FBO, they often consider that God cares for them—an accomplishment many FBOs seek.
Finally, a CMS also helps members become “conflict competent”  (Lynch, 2003, p. 104); that is, members learn the art of dealing with conflict both in their organization and in their personal lives.  If FBOs apply effective systems when solving internal disputes, we can only imagine how that might spill over into the realm of interreligious disputes and beyond.